111     Til  I 

University  of  California. 

i/Jc(-c'Ssioiis  'No^D  of  /     .        (lhn<:  No.  , 


THE 


UNIOJ^^STATB: 


V 

j^    LETTER 


OUR  STATES-RIGHTS  FRIEND 


JOHN  C.  KURD,  LL.  D., 


AUTHOK  OP 


•'  ITie  Law  of  Freedotn  and  Bondage  in  the  United  Slates";  "  The  Theory  of  our 

National  Existence";  "  The  Centennial  of  a  Sevolution 

by  a  Bevdiitionist." 

if     "'"^^^^ 

NEW  YORK : 
D.  Van  Nostkand  Company. 

1890. 


THE 


UNION^STATK: 


j^    LETTER 


OUR  STATES-RIGHTS  FRIEND. 


JOHN  C.  HURD,  LL.  D., 


AUTHOR   OF 


The  Law  of  Freedom  and  Bondage  in  (he  United  States";  "  The  Theory  of  our 
National  Exislence";  "  The  Centennial  of  a  Revolution 
by  a  Uevotvtionidl." 


NEW  YORK : 
D.  Van  Nostrand  Company. 

1890. 


COPYRIGHT 

1S9O, 
John   C.  Hurd. 


PREFATORY. 

The  production  of  these  pages  originated  in  a  brief 
corresjwndence  with  a  citizen  of  one  of  the  North- 
western States,  who  had,  in  a  recent  publication,  pre- 
sented an  argument  in  defense  of  the  States  of  the 
Southern  Confederacy  in  asserting  a  right  to  secede 
from  the  Union. 

In  our  discussion,  the  historical  question  of  the  actual 
political  status  of  the  thirteen  States,  at  the  time  when 
the  Constitution  was  proposed  for  ratification  by  them, 
seemed,  to  each  of  us,  the  question  which  required  to 
be  settled  at  the  outset,   as  between  ourselves. 

This  question — we  were  agreed — could  be  decided 
only  by  historical  evidence  from  the  record,  as  distin- 
guished from  any  assumptions,  or  any  arguments,  as 
to  the  merits  or  demerits  of  imaginable  systems  of 
government. 

On  looking  up  this  record-evidence,  for  use  in  our 
private  correspondence,  it  seemed  to  require  more 
verbal  citation  and  careful  reference  to  the  accredited 
sources  of  information  than  could  well  be  arranged  in 
the  usually  indifferent  style  of  epistolary  vvTiting. 
Hence  a  preference  for  the  accuracy  of  printed  com- 
munication suggested   itself,  and,  as  a  consequence  of 


■•gyiVEI    -.TV 


this,  the  expediency  of  giving  the  whole  as  a  publica- 
tion— to  be  offered  to  any  interested  in  the  general 
subject. 

The  ulterior  purpose  of  this  historical  inquiry  was, 
of  course,  on  the  part  of  the  author,  to  make  it  a  basis 
for  a  denial  of  the  doctrine  of  States-rights,  when  pro- 
posed in  justification  of  State-secession. 

In  distinguishing  and  illustrating  his  own  special 
argument  for  this  denial,  it  was,  however,  necessary 
for  the  author  to  separate  it  from  other  arguments  or 
theories  which  had  been  offered  as  supporting  the  same 
conclusion. 

Hence  it  was  necessary  to  present  the  reasons  for 
rejecting  each  and  all  of  the  most  popular  or  generally 
current  defenses  of  the  action  of  the  Federal  Govern- 
ment for  resisting  the  attempt  to  separate  the  States 
associated  in  the  Southern  Confederacy  from  the  exist- 
ing Union. 

So  much  space  has  been  devoted  to  this  negative  side 
of  the  discussion,  that  it  is  highly  probable  that  many 
persons  who  agree  with  the  author  in  sustaining  such 
action  of  the  government,  as  in  accordance  with  the 
pre-existing  political  Constitution  of  the  United  States, 
will  except  to  many  of  the  positions  taken  in  these 
pages.  They  may  very  probably  even  regard  the 
general  bearing  of  his  argument  as  more  antagonistic 
to  some  view  of  their  own,  than  it  is  to  any  w^hich 
they  had  been  accustomed  to  class  as  parts  of  the 
heresy   of  State-sovereignty.  J.  C.  H. 

New  York,  April,  1890. 


LETTER 


Writing  to  you  on  the  question  asked  in  your  letter, 
I  have  the  satisfaction  of  thinking  that  we  can  "  plead 
issuably,"  as  lawyers  say,  and  know  what  we  are  to 
discuss.  That  letter  recalls  one  from  another  corre- 
spondent, who,  agreeing  with  me  in  many  respects,  raised 
the  same  question — Why  should  it  be  held,  or  how 
can  it  be  contended,  that  those  spoken  of  in  the  Dec- 
laration of  1776  as  "independent  States,"  were  then 
and  afterwards  only  one  independent  State  ? 

But  this  correspondent  proi^osed,  as  doctrine  derived 
from  "  all  history,"  that  all  law  and  political  existence 
were  founded  "on  consent."  I  believe  it  api)eared  to 
him  that  the  political  personality  of  each  colony  began 
by  the  consent  of  each  early  settler,  and  that  a  like  con- 
sent by  each  inhabitant,  independently  of  any  actual 
force  and  will  manifested  by  the  body  corjjorate,  as 
a  political  person,  was  the  cause  of  whatever 
authority  it  niight  afterwards  claim  as  one  of  the 
United  States. 

As  I  know  nothing  of  any  such  consent  on  my  own 
part,  and  never  lieard  of  anybody  at  that  time  or  since 
who  could  say  that  he  had  been  in  a  situation  to  give 
or  withhold  his  consent  to  what  was  or  might  be 
enforced  as  his  political  and  legal  obligation,  I  was 


6 

unable  to  find  any  common  basis  upon  which  a  discus- 
sion of  the  question  raised  between  us  could  be  pur- 
sued. 

There  is  no  arguing  as  to  the  evidence  of  this  as- 
sumed consent.  It  is  discerned  by  each  several  thinker 
according  to  his  own  conceptions  of  political  expe- 
diency. I  dare  say  there  are  as  many  at  the  South  as 
at  the  North  who  would  make  it  the  basis  for  whatever 
concrete  system  of  political  life  they  might  hai)pen  to 
approve  of.  They  and  we  are  not,  I  take  it,  agreed  as 
to  what  is  to  be  understood  by  the  word  sovereignty. 
But  I  find  in  your  letter  the  phrase — "  acquired  by 
force,  as  all  sovereignty  is  acquired." 

On  this  we  are  agreed,  and  therefore  the  question  be- 
tween us  is— where  had  the  force  existed,  which,  before 
1789,  taken  as  the  date  of  the  adoption  of  the  Consti- 
tution, had  sustained  whatever  sovereignty  had  been 
manifested  in  the  country  known  as  the  United  States  ? 

Neither  of  us,  I  take  it,  would  propose  to  find  the 
answer  to  this  question  by  arguing  as  to  where  it  ought 
to  be  found  ;  or  by  arguing  as  if  it  could  be  shown  by 
reasoning  from  scientific  data.  I  assume  that,  for  us, 
the  existence  of  will  and  force  directed  to  a  certain 
political  end  is  the  only  matter  of  inquiry. 

As  between  ourselves,  it  might  be  asked — on  whom 
is  the  burden  of  proof  ?  One  afl^irms  the  will  and  force 
to  have  been  in  each  separate  State,  as  to  its  own  ter- 
ritory and  population.  The  other  regards  the  will  and 
force  as  manifested  only  by  a  number  of  States  together, 
or  as  united  to  constitute  a  single  political  ])ower- 
holder  as  to  their  entire  territory  and  poi)iilati()n  ;  the 
will  and  force  being  shown  by  them  only  in  community, 
or  as  one. 

Each  denies  the  proposition  affirmed  by  the  other  ; 
so  that  we  are  really  equal  as  to  the  burden  of  proof. 


You  may  be  taken  to  have  presented  your  side  affii-m- 
atively  in  your  letter. 

As  to  whatever  I  can  advance  to  sustain  my  affirm- 
ative, I  think  the  best  I  may  do  is  to  state,  very  im- 
j)erfectly  it  must  be,  the  various  changes  in  my  own 
views  of  the  general  subject  of  our  political  existence. 

As  for  my  earliest  notions — I  suppose  the  doctrine 
which  I  must  have  heard  inculcated  and  have  received 
from  my  reading  was  that  commonly  accepted  by  the 
Whig  party  (1830-1850).  This  I  understood  as  taking 
the  Constitution  for  record-evidence  of  a  grant,  transfer 
or  cession,  absolute  or  irrevocable,  by  each  State, 
severally,  to  an  administrative  government  organized 
under  the  Constitution  as  a  written  law,  or  to  some  per- 
son or  persons  represented  by  that  government,  of  cer- 
tain powers  originally  inherent  in  each  State,  severally, 
as  a  sovereign  nationality. 

It  appeared  to  be  held,  as  historic  fact,  that  the 
States  individually  agreed  to  this  transfer  of  some  portion 
of  their  complete  sovereignty  in  order  to  act  more  effect- 
ually as  one  nation  than  they  could  if  that  sovereignty 
were  represented  through  their  delegates  in  a  simple 
federal  alliance,  and  that  this  last  had  been  their  rela- 
tion to  each  other  before  the  adoption  of  this  plan  or 
constitution  of  government. 

Whatever  variety  of  opinion  may  at  that  time  have 
existed  as  to  the  precise  extent  of  this  grant,  or  as  to 
the  political  status  of  the  recij^ient,  the  conception  of 
the  original  thirteen  States,  as  each  severally  possessed 
of  complete  sovereignty,  seemed  to  be  equally  prevalent 
at  the  North  as  at  the  South. 

I  had  always  recognized  that  force,  not  consent,  must 
be  the  condition  of  any  several  political  existence,  and, 
from  history,  found  that  the  force  which  had  sustained 
State  Governments  in  each  State  for  internal  relations. 


8 

and  also  an  a^iency  of  some  sort  for  certain  purposes 
indispensable  for  existence  and  recognition  as  a  national 
power,  had  been  first  exerted  at  one  and  the  same  time 
by  thirteen  personalities.  It  appeared  to  me  that  the 
several  existence  of  these,  as  States,  at  and  after  the 
Declaration  of  Independence,  was  due  to  a  simultane- 
ous assumption  of  power  on  the  part  of  thirteen  exist- 
ing political  bodies,  not  previously  sovereign  in  any 
respect,  but  organized  as  colonies  or  j^rovinces  under 
the  force  and  will  of  the  British  empire. 

After  my  earliest  reflections  on  this  subject,  I  must 
have  abandoned  the  conception  of  each  of  the  thirteen 
colonies  as  having  simultaneously  acquired  a  severally 
sovereign  existence  by  its  several  force  and  will  ;  if 
indeed  I  had  ever  so  conceived  it.  I  probably  came  to 
regard  the  several  force  and  will  of  the  colony  as  ac- 
quiring for  it  the  power  which  was  exercised  severally 
and  internally  in  the  ensuing  condition  of  union,  and 
the  joint  force  and  will  of  all  the  colonies  as  acquiring, 
for  all  the  States,  as  composing  one  political  ])erson, 
the  powers  manifested  externally  and  internally  as  a 
recognized  national  State. 

This  condition  of  things  I  then  regarded  as  an  intrin- 
sic fact  in  the  genesis  of  each  State  and  of  the  Union  ; 
a  i)C)litical  fact  in  their  history,  distinct  from  the 
establishment  of  any  particular  instrument  of  govern- 
ment. It  was  not  merely  older  than  the  Constitution 
and  the  Articles  of  Confederation,  but  was  the  i)olitical 
fact,  from  which  alone  they,  as  being  legislative  effects, 
derived  their  existence  and  authority. 

But  this  view  was  founded  on  the  assumption,  which 
I  had  accepted  as  sound  in  theory,  it  being  generally 
affirmed  by  Northern  historians  and  jurists  as  having 
been  actually  realized  in  our  case  by  the  ado^jtion  of 


9 

the  Constitution,  that  what  is  called  sovereignty  is 
capable  of  being  held  in  division. 

It  was  the  civil  war  which  led  me  to  question  whether 
this  theoretical  separation  of  sovereign  powers  had  been 
exhi])ited  in  our  political  system.  It  was  at  first  argued, 
by  Unionists,  of  every  party,  that  the  Federal  Govern- 
ment should  only  maintain  itself  in  the  exercise  of  the 
powers  iiTevocably  surrendered  to  it  by  the  several 
States  of  the  Southern  Confederation,  as  similar  powers 
had  been  surrendered  by  the  others — the  ' '  residuary ' ' 
powers  being  supposed  to  remain  all  along  in  the  pos- 
session of  the  several  States  so  confederated,  as  the 
like  powers  were  in  the  possession  of  any  other  State. 

This  was  stating  the  case  as  it  might  perhaps  have 
been  regarded  had  the  Southern  States  been  then  at- 
tempting that  resistance  to  specific  laws  enacted  by  the 
Federal  Government  which  was  known  as  "nullifica- 
tion," in  1830.  It  was  looking  at  the  question  from 
the  lawyer  s  point  of  view,  and  as  it  had  presented 
itself  to  Mr.  AVebster  when  arguing  the  question  of 
powers  as  one  to  be  settled  by  the  Constitution  as  law. 
A  majority  of  the  people  of  the  Xoith,  while  the  war 
was  in  progress,  may  have  regarded  it  in  tliis  light. 
The  Judiciary  has  all  along  been  trying  to  decide  cases 
arising  out  of  the  relations  of  war  by  taking  this 
position. 

Ensuing  events  demonstrated  the  impossibility  of 
conducting  war  against  armies  of  secessionists,  within 
the  limits  of  their  States,  consistently  with  such  a 
theory  or  assumption. 

It  seemed  clear  enough  to  me  that,  even  as  a  question 
under  the  Constitution  as  law,  any  enforced  exercise  of 
powers  claimed  as  under  law  by  the  Federal  Govern- 
ment would  involve  some  restriction  of  the  power's 
"  reserved  "  to  the  State  by  the  same  law.     But,  if  held 


10 

by  political  rif>:ht  above  law,  these  "reserved"  powers 
must  necessarily  be  employed  in  recoverinpj  the  powers 
formerly  granted  by  the  State  to  and  still  claimed  by 
the  Federal  Government.  A  belligerent  attitude, 
asserted  by  either  party  to  the  division,  involved  the 
exercise  of  all  the  powers  of  sovereignty,  and  was 
inconsistent  with  the  continuation  of  the  constitutional 
division  of  powers  with  the  other  belligerents.  I  saw 
that  it  was  the  fallacy  of  divided  sovereignty  which 
embarrassed  the  administration  and  was  the  main  cause 
of  divisions  of  opinions  at  the  North  as  to  any  political 
purpose  in  supporting  the  war. 

It  was  then  that  I  began  to  inquire  whether  the  pos- 
session of  the  "reserved"  powers — regarded  as  sover- 
eign powers — might  not  possibly  be  ascribable  to  the 
same  will  and  force  as  was  the  possession  of  the  powers 
which  I  had  attributed  to  the  will  and  force  of  the 
States  united.  For  I  had  then  arrived  at  the  convic- 
tion that  neither  set  of  powers  could  be  sovereign 
powers  against  the  world  in  general — all  other  nations 
— except  as  being  held  by  some  one  person  or  one 
aggregate  of  persons,  as  one  homogeneous  mass  of 
powers,  as  to  their  character  or  quality. 


II. 

Having  reached  this  point,  I  concluded  that  the  fun- 
damental question  in  the  various  issues  of  that  time 
had  always  been  identical  with  our  present  inquiry— 
Whether  each  or  any  one  of  the  thirteen  original 
States,  ever,  at  any  moment  after  their  ceasing  to  be 
dependent  as  colonies,  had  exhibited  force  and  will  as 
sustaining,  severally,  the  powers  belonging  to  every 
sovereign  nation,  or  State,  in  that  sense  :  or — Whether 
it  was  only  by  a  common  force  and  will  exerted  by 
them  as  one  integral  nation  or  State  that  they  had 
claimed  and  sustained  those  powers. 

It  has  often  been  said,  as  a  foundation  for  your  view, 
that  the  thirteen  colonies  had  been  "independent  as 
to  each  other."  They  were  independent  in  respect  to 
each  other,  only  as  every  British  landlord  was  inde- 
pendent as  to  any  other,  or  as  one  citizen  or  subject,  as 
such,  must  be  independent,  politically,  of  every  other. 
Their  relations  of  independence,  as  to  each  other,  were 
under  municipal  positive  law,  as  distinguished  from 
relations  of  independence,  as  sovereigns,  by  interna- 
tional law.  They  were  reciprocally  independent  in  the 
exercise  of  whatever  powers  they  had  as  administra- 
tive governments.  But  this  relative  autonomy  was 
not  in  the  nature  of  sovereign  power ;  because  it  was 
not  the  exercise  of  several  independent  political  juris- 
diction as  against  every  other   political  jurisdiction. 


12 

Particularly,  it  was  not  sueli  as  against  that  one  known 
as  the  British  empire. 

This  independent  political  existence  was  precisely 
what  had  to  be  acquired  l\v  force  and  will — revolu- 
tionary force  and  will — exhibited  by  some  then  exist- 
ing person  or  persons  ;  and  our  question  is — Who  the 
person  or  persons  were,  who  so  acquired  it. 

When  this  independent  political  existence  has  l^een 
attained,  it  is,  for  those  whose  only  interest  is  to  know 
this  fact,  utterly  immaterial  whether  the  exercise  of 
force  and  will  was  morally,  legally,  or  economically 
justitiable,  or  not. 

But  it  had  been  very  common  in  the  revolutionary 
period,  especially  with  men  of  legal  training,  to  main- 
tain that  the  American  colonists  began  their  resistance 
to  Great  Britain  only  to  maintain  political  privileges 
or  franchises  then  held  by  them  under  a  law  of  some 
sort,  as  against  the  Crown  and  Parliament. 

This  claim  was  founded  on  the  assumption  that 
every  inhabitant  of  a  British  colony  could,  as  English 
subject,  demand  political  franchises  similar  to  any 
which  w^ere  exercised  by  Englishmen  in  England.  It 
has  been  noticed  by  some  writers  of  our  own  time,  both 
English  and  foreign,  that,  in  England,  the  relation 
between  the  monarch  and  the  subject  had  been  so  long 
and  peacefully  recognized  in  the  prescriptive  exercise 
of  political  privilege  by  the  members  of  various  cor- 
porate bodies,  that,  in  that  country,  as  in  no  other, 
the  possession  by  the  peojjle  of  independent  i)olitiQal 
power  has  for  centuries  seemed  to  be  determined  by 
law,  or  by  something  like  law.' 

At  the  time  of  the  foundation  of  the  colonies,  the 
people  of  England,  as  found  in  sucli  custouiary  ])()liti- 
cal  organizations  dating  from  a  remote  i)eri<)d,  might 

'   e.  g.,  Dicey,  p.  214. 


13 

be  regarded  as  holding  political  rights  under  a  com- 
pact, as  against  the  crown.  This  is  something  quite 
different  from  that  assumption  of  a  contract,  made 
before  law  existed  to  make  any  contract  binding, 
which  was  the  basis  of  John  Locke's  Treatises  on 
Government,  written  to  sustain  the  English  revolu- 
tion of  1688 ;  and  therefore,  in  England  at  that  time 
there  was  really  something  answering  to  a  Constitution, 
in  the  sense  of  a  law  defining  the  possession  of  supreme 
power  or  sovereignty. 

But  whatever  these  political  franchises  of  English- 
men at  that  day  may  have  been,  they  w^ere,  if  regarded 
as  legal  rights,  derived  from  law  of  territorial  extent, 
and  as  much  localized  as  the  relations  of  tenure  of 
land  in  England.  When  colonists  from  various 
European  nationalities  claimed  rights  of  independent 
political  jurisdiction  in  America,  these  could  not  be 
referred  to  any  similar  foundation  in  ancient  custom. 
Their  Charters,  Patents  and  similar  instruments,  none 
dating  earlier  than  the  Stuart  kings,  were  the  only 
vouchers  of  this  sort  to  which  they  could  refer. 

So  they  naturally  took  up  the  argument  which 
Locke  and  the  English  "Whigs  of  his  generation  had 
thought  good  for  the  revolution  of  1688.  They  too 
proclaimed  the  fiction  of  a  social  compact  and  the  con- 
sent of  each  natural  person  entering  into  society  ;  the 
more,  because  reinforced  by  the  French  school  of  their 
time ;  and  talked,  in  all  seriousness,  of  their  rights 
against  the  British  empire  as  men,  while  standing  on 
the  soil  of  the  despoiled  red  man,  by  the  side  of  the 
imported  African  chattel. 

Such  theories  are  as  available  for  the  States-rights 
doctrine  as  for  any  opposed  to  it.  As  there  could  be 
no  record  of  any  social  compact,  it  has  been  free  to  any- 
body to  imagine  one  made  for  his  State  severally,  or 


14 

for  the  whole  bundle  of  States  and  Territories.  It  may 
as  justly  ])e  asserted  that  any  county,  townshij)  or 
commune  exists,  as  sovereign,  by  force  of  this  compact. 
The  townships  in  Massachusetts  and  Connecticut.'  dur- 
ing the  revolution,  asserted  local  sovereignty  on  this 
basis. 

Whatever  controversy  there  may  be  as  to  the  origin 
of  the  colonial  governments — as  by  the  consent  of  each 
inhabitant,  or  by  the  political  authority  of  the  English 
sovereign — it  would  be  material  for  us  only,  as  related 
to  the  inquiry  whether  the  States,  which  took  the 
places  of  the  colonies,  were  the  actors  in  the  revolu- 
tion to  which  their  independence  is  to  be  ascribed. 
The  need  for  such  inquiry  is  indicated  by  the  position 
of  those  who,  desiring  to  prove  the  existence  of  some 
holder  of  an  undivided  sovereignty  to  wliose  single 
will  and  force  all  government  can  be  referred,  profess 
to  discern  in  the  geographical  people,  that  is  the 
integral  population  of  all  the  colonial  territory,  the 
person  to  be  regarded  as  actor  in  the  revolution. 

From  the  nature  of  such  questions,  any  proposition 
of  this  sort  should  be  supported  by  some  historical 
testimony.  But,  instead  of  anything  of  this  kind, 
we  are  asked  to  accept  the  affirmation  of  docrines  or 
theories  like  that  of  Locke,  and  such  as  are  formulated 
in  the  Declaration  of  Independence,  and  in  several  of 
the  State  Constitutions  ;  as  in  that  of  Massachusetts. 

In  arguing  the  question  proposed  between  ourselves, 
I  shall  presujipose  that  the  Declaration  was  fi-amed 
by  i)ersons  who  were  acting  in  a  representative  cai)ac- 
ity,  and  that  it  lias  always  been  open  to  ask  what 
authority  they  had  to  declare  anything  at  all. 

When  you  say — "Whatever  these  cohmies  may  have 
become,    it  was  effected    by  themselves,"    I    assume 

'   Jolinston's   Connecticut. — Am.  Com.  Scrios,  291. 


15 

that  you  hold,  as  I  do,  that  the  will  and  force  which 
was  to  bring  about  the  change  was  to  be  manifested 
by  these  colonies  as  existing  political  entities,  in  dis- 
tinction from  a  mere  majority  of  the  individual  col- 
onists, as  together  composing  a  geographical  people. 
Taking  this  ground,  it  is  proper  to  inquire  what  record 
the  several  colonies  have  left  us  as  to  their  will  in  this 
matter  and  their  own  views  as  to  the  force  which  was  to 
sustain  that  will. 

I  suppose  that  it  was  as  expressing  the  same  thought 
that  you  say — "They  were  among  nations,  whatever 
they  chose  to  call  themselves."  But,  to  my  mind, 
your  proposition  is  somewhat  of  a  begging  the  ques- 
tion. For  the  point  to  know  is  whether  they  were 
"among  nations"  at  all ;  either  as  one  or  as  thirteen. 
Your  jDrox^osition  is  equivalent  to  saying  that  they — 
the  colonies — were  whatever  they  might  call  them- 
selves, because  they  were  nations  as  much  as  any 
nation. 

Aside  from  the  question  whether  the  colonies  be- 
came whatever  they  chose  to  call  themselves,  your 
proposition  assumes  that  the  words  used  were  intended 
by  those  who  used  them  to  have  the  meaning  which 
you  think  they  ought  to  bear.  That  is,  that  the  words 
'•free  and  independent  States,"  as  used  by  them, 
indicated  a  will,  jiurpose  or  expectation  that  these 
colonies  should  thereafter  exist  as  so  many  severally 
sovereign  political  entities,  each  ranking  as  one  among 
nations. 

In  your  reliance  on  the  Declaration,  as  proving  the 
existence  from  that  moment  of  so  many  severally 
independent  or  sovereign  States,  you  have,  I  allow, 
the  supporting  consent  of  an  overwhelming  majority  of 
our  fellow-citizens  without  distinction  of  party  or 
section.     The  same  vieAv  has,    I  believe,   almost  uni- 


16 

versa!  acceptance  among  foreign  pii])licists,  who  have 
assumed,  without  further  inquiry,  tliat  an  actual 
political  fact  was  determined  by  tliese  words,  as  you 
interpret  them.  They  also,  for  the  most  part,  assume, 
as  you  do,  that  this  involves  the  recognition  of  a 
similar  independent  existence  for  each  State,  which 
afterwards  became  a  member  in  the  Federal  Union,  and 
they,  logically,  agree  with  you  in  asserting  the  right 
of  any  State  to  withdraw  at  will. 

Whether  those  of  us  at  the  North  who,  while  equally 
insisting  on  the  several  sovereignty  of  the  original 
thirteen,  have  denied  this  pretension  of  a  political 
right,  can  justify  their  position,  is  a  question  which 
we  might  notice  later. 

In  determining  political  existence,  as  in  all  questions 
of  character  and  essence,  calling  oneself,  or  being 
called  by  others,  though  of  some  value  as  testimony  of 
a  volition  or  purpose,  is  a  very  distinct  matter  from 
being.  Therefore,  to  my  mind,  the  value  of  these 
words  in  the  Declaration,  and  of  the  employment  of 
the  plural  "States,"  and  of  such  terms  as  "Con- 
gress," "Confederation,"  or  of  other  phrases  indicat- 
ing a  certain  separate  identity,  is  little  or  nothing  in 
this  issue. 

So  I  would  concede,  for  the  same  reason,  that  we 
should  not  attach  the  value  of  evidence  to  such  appel- 
lative terms  as  "In  the  name  of  the  good  people  of 
these  colonies,"  in  the  Declaration,  or  ''AVe,  the  people 
of  the  United  States,"  in  the  preamble  to  the  Constitu- 
tion, which  are  so  much  relied  on  by  those  whose  ver- 
sion of  our  history  would  contradict  yours,  as  indicat- 
ing a  different  investiture  of  sovereignty, 

Tlie  question  of  the  meaning  of  these  words,  as  used 
in  the  Declaration,  is  nearly  the  same  as  the  question 
whether  these  colonies  actually  had  the  will  to  become 


17 

severally  sovereign.  The  question  whether,  if  they 
had  such  will,  they  had  also  the  several  force  to 
become  such,  may  seem  at  first  to  be  a  distinct  matter. 
But,  in  arriving  at  some  answer  to  each  of  these  in- 
quiries, they  can  hardly  be  separated ;  since  all  the 
attainable  evidence  bears  equally  on  both. 

For  my  own  part  I  have  found  what,  to  me,  seems  a 
very  sufficient  answer  on  these  two  points  in  several 
important  acts  or  declarations  of  some  of  the  colonies  ; 
ante-dating  the  occasion,  when  their  existence  as 
"free  and  independent  States"  was  declared  by  their 
delegates. 


III. 

It  is  important  to  notice  tliat  all  of  us  who  discuss 
this  issue  of  ours,  as  to  sovereignty,  are  apt  to  con- 
found the  matter  of  independent  political  existence 
with  that  of  form  of  government.  This  is,  mainly,  be- 
cause, whatever  diversity  of  view  may  have  existed 
as  to  the  location  of  the  ultimately  sujn-eme  power,  a 
federal  form  of  government  has  always  been  a  neces- 
sity. Such  a  government  could  be  administered  by 
13ersons  having  little  harmony  in  their  views  as  to  that 
political  essence  on  which  any  legal  authority  depended. 
The  two  conceptions — political  existence  and  form  of 
government — should  be  more  distinguishable  to  our 
minds  than  to  those  of  any  people  that  has  had  a  several 
history.  Yet  we  use  the  term  '-our  institutions"  in  a 
general  way,  as  combining  them. 

According  to  my  conception  of  sovereignty,  it  is  ex- 
hibited in  any  independent  exercise  of  jurisdiction,  or 
the  application  of  rules  as  a  measure  of  justice  between 
man  and  man.  That  is  to  say,  it  is  necessarily  exhib- 
ited in  the  independent  dispensation  of  ordinary  mu- 
nicipal law,  civil  and  criminal,  within  a  certain  territory. 
Sovereignty,  therefore,  was  asserted  not  only  in  the 
operations  of  war  and  in  diplomacy,  conducted  for  all 
the  colonies  by  a  common  instrument,  but  equally  so 
whenever  local  or  internal  government  in  any  colony 
was  administered  without  reference  to  any  pre-existing 


19 

authority  such  as  coukl  be  attributed  to  the  king  or  the 
sovereignty  of  the  British  empire.  As  is  remarked  by 
a  recent  writer  on  these  events  :  ' '  Wherever  the  func- 
tions of  government  were  performed  under  other  sanc- 
tion than  that  of  the  crown  of  England,  revolution  was 
an  accomplished  fact."^ 

The  assertion  of  this  jurisdiction  in  and  for  any 
colony  or  colonies  involved,  as  between  themselves  and 
the  former  sovereign,  all  the  consequences  which  could 
be  attributed  to  any  formal  declaration  of  independence. 
We  know  from  abundant  record-evidence  that  it  was 
so  regarded  by  many  at  the  time  ;  both  among  those 
who  favored  and  those  who  opposed  the  movement  for 
independence.^ 

Now,  what  we  have  to  ask  ourselves  is — AYhether, 
when  this  occurred  in  the  several  colonies,  the  colony, 
as  political  person  or  State,  was  exercising  a  several 
will  and  force  to  sustain  independently  such  measure 
of  political  jurisdiction  within  its  territory,  or  was  rest- 
ing on  the  common  will  and  common  force  of  all  the  col- 
onies, as  States  constituting,  in  union,  one  prospective 
possessor  of  undivided  sovereignty.  We  know  from 
the  contemporary  records  that  in  several  of  the  colonies 
represented  by  delegates  in  the  Continental  Congress, 
those  persons  who  had  been  acting  as  a  government, 
though  more  or  less  identified  before  this  crisis  with  the 
provincial  administration,  hesitated  as  to  assuming  the 
further  exercise  of  civil  and  criminal  jurisdiction  for 
their  several  colonial  limits.  They  were  conscious  that 
whatever   political    sovereignty   had   supported   their 

'  Beginnings  of  American  Nationality,  by  A.  W.  Small,  Ph.  D.,  p.  43. 

»  Gordon's  Hist,  of  the  Am.  Rev.,  II,  75.1.50,169.  John  Adams' 
Autobiog.  Works,  II,  489,510;  III,  13.23;  44-46.  Frothiughani's  Rise  of 
the  Republic,  448,491-498.  Bancroft,  IV,  419.  Barry's  Hist,  of  Massachu- 
setts, 3d  period,  96  and  references. 


20 

authority  during  the  colonial  period  was,  as  matter  of 
fact,  no  longer  operative.  In  this  situation  they  in- 
structed their  delegates  in  that  body  to  present  the  case 
to  the  Continental  Congress  ;  that  is,  to  all  the  colonies 
acting  as  one  political  power — to  obtain  their  "advice 
and  instruction/' 

The  earliest  of  these  applications  was  from  the  second 
Provincial  Congress,  so  called,  of  Massachusetts.  This 
body,  writing  to  its  delegates  in  the  Continental  Con- 
gress, May  16th,  1775,  states — "  As  the  question  equally 
aifected  our  sister  colonies,  and  as  we  have  declined, 
though  urged  thereto  by  the  most  pressing  necessity, 
to  assume  the  reins  of  civil  government  without  their 
advice  and  consent,'"  and — "  AVe  shall  readily  submit  to 
such  a  general  j)lan  as  you  may  direct  for  the  colonies  ; 
or  make  it  our  great  study  to  establish  such  a  form  of 
government  here  as  shall  not  only  promote  our  advant- 
age, but  the  union  and  interest  of  all  America."' 

Mr.  Bancroft,  who  ought  to  know,  says  of  Massachu- 
setts, at  this  time:  "That  colony  still  languished  in 
anarchy,  from  which  they  were  ready  to  relieve  them- 
selves if  they  could  but  wring  the  consent  of  the  Con- 
tinental Congress  to  their  'taking  up  and  exercising 
the  powers  of  civil  government.''  "^ 

A  second  address,  referring  to  the  former  and  asking 
for  "immediate  advice  on  this  subject,''  was  sent  by 
the  third  Provincial  Congress  of  Massachusetts,  June 
11,  1775.  But  the  General  Congress  had  acted  on  the 
same  request,  June  9,  1775,  recommending  to  the  Pro- 
vincial Congress  of  that  colony  a  new  election  by  "all 
inhabitants  of  the  several  places  which  are  entitled 
(/.  e.,  under  the  old  charter,)  to  representation  in  the 

•  Journals  of  the  Mass.  Provincial  Congress  of   1774,  1775,  edition  of 
1838.     Force'.s  Am.  Archives,  4th  Series,  II,  p.  620,  806. 
«  Bancroft,  Hi.st.  of  the  United  States,  IV,  203. 


21 

Assembly.'  On  June  2()tli  this  was  read  in  the  Pro- 
vincial Congress,  and  summonses  to  the  *'  towns"  were 
issued,  beginning — "For  observance  of  the  foregoing 
resolve  of  the  Honorable  Continental  Congress,  these 
are  to  request,''  etc.,  the  election  of  a  new  Assembly, 
which  met  July  19th  ;  when  the  third  and  last  Provin- 
cial Congress  was  dissolved.^ 

The  next,  in  time,  and  a  more  distinct  index  of  colo- 
nial feeling  on  this  point,  is  seen  in  the  "  instructions  " 
given  by  the  Provincial  Congress  of  Xew  Hampshire, 
laid  before  the  Continental  Congress  October  18th,  1775,^ 
by  its  delegates  in  that  body,  directing  them  "  to  use 
your  utmost  endeavors  to  obtain  the  advice  and  direc- 
tion of  the  Congress  with  respect  to  a  method  for  our 
administering  justice  and  regulating  our  civil  police. 
AVe  press  you  not  to  delay  this  matter  ;  as  its  being 
done  speedily  will  probably  prevent  the  greatest  con- 
fusion among  us."  In  reply,  the  Congress,  November 
3rd,  1775,  resolved  "that  it  be  recommended  to  the 
Provincial  Convention  of  New  Hampshire  to  call  a  full 
and  free  representation  of  the  people,  and  that  the 
representatives,  if  they  think  it  necessary,  establish 
such  a  form  of  government  as,"  etc.,  "  during  the  con- 
tinuance of  the  present  dispute  between  Great  Britain 
and  the  colonies."  John  Sullivan  writes,  December  12th, 
177o,  "  I  hear  that  the  Continental  Congress  has  given 
our  province  a  poAver  to  assume  government."* 

When  precepts  were  issued  for  such  election,  the 
town  of  Portsmouth,  the  largest  in  that  colony,  pro- 

'  Force's  Am.  Arch.,  4th  Scr.,  II,  1844. 

»  Records,  p.  319.  Journals  of  Congress,  I,  80.  R.  Frothingham; 
Rise  of  the  Republic,  491.     Curtis'  History  of  the  Constitution.  I,  36. 

*  Force's  Am.  Archives,  4th  Series,  III,  p.  1897. 

*  Force's  Am.  Arch.,  4th  Series,  IV,  p.  241.  R.  Frothingham's  Rise, 
etc.,  493. 


22 

tested  against  the  measure  as  '*  aiming  at  independency, 
which  we  totally  disavow/'' 

The  convention  elected  on  tliis  recommendation, 
calling  itself  Congress,  appears  to  have  resolved,  Decem- 
ber 21st,  177o,  that  it  would  '' take  up  government," 
provisionally,  "during  the  present  contest  with  Great 
Britain." 

Afterwards,  January  5th,  1776,  they  declared — 
"We,  the  members  of  the  Congress  of  the  colony 
of  New  Hampshire,  chosen  and  appointed  by  the 
free  suffrage  of  the  people  of  said  colony,  author- 
ized  and  in  particular  to  establish  some  form 

of  government,  provided  that  measure  should  be  recom- 
mended by  the  Continental  Congress,  and  a  recommenda- 
tion to  that  purjDOse  having  been  transmitted  us  from  the 
said  Congress,''  etc.  They  assume  the  name,  power 
and  authority  of  a  House  and  Assembly  for  the  colony 
of  New  Hampshire,  and  organize  themselves.- 

Recommendations  in  terms  similar  to  those  in  the 
case  of  Massachusetts  and  New  Hampshire  were  sent 
by  the  Congress  to  the  convention  in  South  Carolina, 
November  4th,  1775.^  The  President  of  the  Provin- 
cial Congress,  February  9,  1776,  thanking  its  delegates 
to  the  Continental  Congress,  mentioned  theii*  services 
in  procuring  the  "permits  granted  to  the  colonies  to 
erect  forms  of  government  independent  of  and  in  op- 
position to  the  regal  authority.^  On  the  day  following 
a  committee  was  appointed  for  framing  a  Constitution 
of  government,  which  was  adopted  by  the  convention 
March  28,   1776.     But  its   continuance  was   limited  in 

^  Dec.  25, 1775,  Force's  Am.  Archives,  4th  Series,  IV,  459. 

*  Force's  Am.  Archives,  4th  Series,  Vol.  V,  p.  1. 

'  2  Gordon's  Hist.,  151.  Force's  Am.  Archives.  4tli  Series,  V,  562, 
568. 

*  Frothingham's  Rise,  etc.,  494. 


23 

reference  to  a  possible  accommodation  between  the 
colonies  and  Great  Britain.^ 

The  local  dissensions  in  North  Carolina,  during  1775, 
had  been  discussed  by  the  general  Congress  November 
28,  when  according  to  Gordon's  statement — 
"Instead  of  a  similar  recommendation  to  what 
was  given  to  South  Carolina  about  establishing 
a  form  of  government,  it  was  only  recommended  to  the 
convention  or  committee  of  safety,  in  case  the  method 
of  defending  the  colony  by  minute-men  be  inadequate 
to  the  purpose,  to  substitute  such  other  mode  as  to 
them  should  appear  most  likely  to  affect  the  security  of 
the  colony/'- 

It  may  have  been  that  the  measure  of  submitting  the 
whole  question  of  a  new  local  government  to  the  people 
of  the  province  was  not  proposed,  in  this  case,  in  view 
of  the  extended  opposition  to  the  revolutionary  move- 
ment which  existed  at  the  time  in  North  Carolina.  The 
people  of  the  province  could  not  have  been  committed 
by  any  local  movement  like  the  "declaration  of  inde- 
pendence," so  called,  of  Mecklenburg  County,  May  31, 
1775,  the  authenticity  of  which  has  been  controverted. 
The  little  that  has  been  ascertained  about  it  has  been 
summed  up  by  Mr.  Frothingham,^  and  he  remarks, 
truly  enough,  in  view  of  facts  rather  than  of  words — 
"This  action,  though  bold  in  the  direction  of  self- 
government,  was  still  in  the  spirit  of  subordination  of 
the  county  to  the  colony,  or  to  the  decision  of  the 
Provincial  Congress  and  the  Continental  Con- 
gress— that  is  to  say,  in  entire  harmony  with  the 
revolutionary  movement.  North  Carolina  may  point 
to  it  with  pride  as  evincing  the    spirit    of  the  peo- 

1  Ramsay's  Hist,  of  So.  Car.,  I,  7. 
«  2  Gordon's  Hist.,  153. 
*  Rise,  etc.,  422,  note. 


24 

pie,  and  even  as  taking,  substantially,  the  position 
that  was  taken  on  the  15th  of  May,  1776,  when  Congress 
recommended  all  the  colonies  to  form  local  govern- 
ments/' 

This  view  seems  more  rational  than  that  taken  ))y  a 
historian  of  the  State,  presenting  the  Mecklenburg  pro- 
ceeding as  "full  of  moral  sublimity  and  a  source  of 
elevating  State  pride — that  the  sons  of  North  Carolina 
should  assemble  at  Charlotte,  Mecklenburg  County, 
and,  without  assurance  of  support  from  any  quarter, 
should  '  declare  themselves  a  free  and  independent 
people  and  of  right  ought  to  be  sovereign  and  self- 
governing.  '  ' '  ^ 

A  recommendation  for  taking  up  government  in  the 
name  of  the  people  was  tendered  by  the  General  Con- 
gress to  the  Convention  of  Virginia,  December  4, 1775.* 
But  this  colony  was  not  among  the  most  forward  to 
adopt  a  new  form  of  local  government ;  although  it 
generally  has  the  credit  of  having  been  the  foremost 
in  proposing  the  declaration  of  the  independence  of  the 
United  Colonies.  The  political  power,  at  that  time, 
was  exercised,  says  Mr.  Frothingham,  "by  a  conven- 
tion consisting  of  delegates  chosen  by  those  qualilied 
to  elect  Burgesses.  The  delegates  were  re-elected  in 
pursuance  of  an  ordinance  of  their  own  making.  ,  .  . 
They  did  not  immediately  comply  with  the  recommen- 
dation of  Congress  in  December  to  form  a  government. 
This  procedure  was  looked  upon  generally  as  in  the 
direction  of  independence,  if  not  as  independence  itself  ; 
which  then  only  a  few  in  the  colony  regarded  with 
favor."^ 

*  Wheeler's  Nortli  Carolina,   II,  259,  cited  by  Frothingliam. 
2  Force's  Am.  Arch.,  4th  Ser.,  Ill,  1941,   2  Gordon's  Hist.,  152.    Barry's 
Hist,  of  Mass.,  3d  period,  96. 
»  Frothingham,  Rise,  etc.,  508. 


25 

The  Virginia  convention  which,  May  15,  1776,  had 
instructed  its  delegates  to  propose  that  declaration, 
proceeded  to  frame  a  Declaration  of  Rights  for  their 
colony  and  a  Constitution  of  government ;  which  was 
adopted  by  the  same  convention,  June  29,  of  tlie  same 
year.  In  this  Constitution  there  was  no  limitation  of 
its  continuance.  The  preamble  states  that  it  was 
adopted  ' '  in  compliance  with  the  recommendation  of 
the  general  Congress."^ 

Of  this  Constitution,  a  recent  historian  of  the  State 
remarks—"  Virginia  thus  declared  herself  an  independ- 
ent sovereignty,  entitled  to  receive  the  absolute  allegi- 
ance of  her  citizens  and  prepared  to  defend  her  claim 
with  the  sword.  "^ 

It  might  be  inferred  from  this  statement  that  the 
author  believed  that  it  was  the  purpose  of  this  colony 
to  become  an  independent  nationality,  resting  on  its 
single  will  and  force  ;  whatever  might  be  the  course 
taken  by  the  other  colonies.  However,  when  speaking  of 
the  Declaration  by  Congress  on  the  4th  of  the  following 
month,  =^  he  says^"The  passage  of  the  Declaration 
marks  a  distinct  epoch  in  the  history  of  Virginia  as 
well  as  of  America  ;  thenceforth  there  was  no  retreat, 
and  she  was  to  stand  or  fall  with  her   sister  colonies." 

In  Georgia,  April  15,  1776,  the  committee  for  devis- 
ing a  temporary  Constitution  or  form  of  government 
reports — "  Whereas,  before  any  general  system  or  form 
of  government  can  be  concluded  upon,  it  is  necessary 
that  application  be  made  to  the  Continental  Congress 
for  their  advice  and  direction  upon  the  same,''  .  .  . 
"  but  nevertheless  in  the  present  state  of  things  it  is 

1  Frothingham,  512,  note. 

*  John   Esten   Cooke,  Virginia,  A  History  of  the  People  (Am.   Com- 
monwealth Series),  p.  439. 
»  lb.,  p.  441. 


26 

indispensably  requisite  that  some  temporary  expedient 
be  fallen  upon  to  curb  the  lawless  and  protect  the 
peaceable/'  .  .  .  "  This  [revolutionary]  Congress, 
therefore,  as  the  representatives  of  the  people  with 
whom  all  power  originates  and  for  whose  benefit  all 
government  is  intended,  etc.^  do  take  upon  themselves 
for  the  present  and  until  the  further  order  of  the  Con- 
tinental Congress,  or  of  this  or  any  future  Provincial 
Congress,  etc^'^ 

Similar,  in  political  significance,  to  those  special 
recommendations  to  single  colonies  was  the  action  of 
the  Continental  Congress  of  May  lOth  and  15th,  1776. 
Reciting  the  necessity — "That  the  exercise  of  every 
kind  of  authority  under  the  said  crown  [of  Great 
Britain]  should  be  totally  suppressed  and  all  the 
powers  of  government  exerted  under  the  authority  of 
the  people  of  the  colonies" — it  resolved  "that  it  be 
recommended  to  the  respective  assemblies  and  conven- 
tions of  the  United  Colonies,  where  no  government 
sufficient  to  the  exigencies  of  their  affairs  has  been 
hitherto  established,  to  adopt  such  governments  as 
shall  in  the  opinion  of  the  representatives  of  the  people 
best  conduce  to  the  happiness  and  safety  of  their  con- 
stituents in  particular  and  that  of  America  in  gen- 
eral."^ 

Tlie  contemporary  appreciation  of  this  recommenda- 
tion of  the  General  Congress,  as  an  act  equivalent  to 
the  assertion  by  all  the  colonies,  as  one  political  person, 
of  sovereignty  in  and  for  the  local  government  of  each 
several  colony,  is  shown  by  the  address  of  a  Philadel- 
phia committee  six  days  later.  May  21,  1776,  to  the 
other  counties  in  the  province.     In  this  they  complain 

»  Force's  Am.  Arch.,  4th  Series,  V,  1108.     IV,  Banc.  Hist..  392. 
«  Force's  Am.  Arch.,   4th  Series,  VI,  466.    Journals  of  Congress,  May 
10  and  15,  1776. 


27 

that  their  delegates  {i.e.,  of  the  province,)  had  not 
"given  their  voice  in  the  Congress  on  the  question  'for 
establishing  government  throughout  the  continent  on 
the  authority  of  the  people,'  but  by  declining  to  vote 
on  this  momentous  occasion  did,  as  far  as  was  in  their 
power,  withdraw  this  province  from  the  Union  of  the 
colonies  in  council  and  action." 

The  committee  further  recommends  the  counties  to 
elect  delegates  for  a  convention  for  framing  the  govern- 
ment, saying — "For,  if  the  union  be  broken,  every 
province  on  the  continent  will  be  upon  us  "" — upon 
us — that  must  mean — will  have  a  right  of  political 
action  against  this  province  for  failing  to  join  with 
every  other  in  responsibility  for  an  act  of  sovereignty 
in  sanctioning  the  assumption  of  local  government  by 
the  political  people  in  each  province  or  colony. 

This  appeal  led  to  the  assembling  of  "a  Provincial 
Conference  of  Committees'"  from  the  counties.  On 
the  18th  of  June,  1776,  the  recommendation  of  the 
General  Congress  of  May  15  was  read  before  this  body, 
and  it  was  "  Resolved,  unanimously,  that  the  said  reso- 
lution of  Congress  of  loth  of  May  last  is  fully  ap- 
proved by  this  Conference."  It  was  further  "Re- 
solved that  the  present  government  of  this  province  is 
not  competent  to  the  exigencies  of  our  affairs.  .  .  . 
and  that  it  is  necessary  that  a  Provincial  Convention 
be  called  by  this  Conference  for  the  express  purpose 
of  forming  a  new  government  in  this  province  on  the 
authority  of  the  people  only."' 

Mr.  Bancroft  has  put  this  relation  of  the  general 
Congress  and  the  new  authorities  for  Pennsylvania  in 
a  clear  light  ;  and  shown  that  the  revolutionary  govern- 
ments of  other  provincial  colonies,  Maryland,  New  York 

'    Force's  Am.  Arch.,  4tli  Scries,  VI,  952,  953. 


28 

and  New  Jersey,  were  in  a  position  like  that  of  Penn- 
sylvania at  this  time.^ 

The  three  local  organizations  afterwards  constituting 
the  State  of  Delaware  were  at  this  time  acting  together 
by  a  House  of  Representatives,  by  which  it  was  resolved, 
June  15,  1776,  after  the  recommendation  of  Congi'ess 
of  May  15  had  been  "read  and  approved,"  that  they 
would,  "  as  they  used  legally  to  exercise  it  in  the  name 
of  the  King,  continue  to  exercise  local  authority  in  the 
name  of  the  government  of  the  Counties  of  New  Castle, 
Kent,  and  Sussex  upon  Delaware,  until  a  new  govern- 
ment shall  be  formed  agreeable  to  the  resolution  of  Con- 
gress of  May  15,  1776."^ 

The  Provincial  Congress  and  Council  of  Safety  in 
New  Jersey,  July  2. 1776,  recites  that  "all  civil  author- 
ity imder  him  [the  King]  is  necessarily  at  an  end  and 
a  dissolution  of  government  in  each  colony  has  conse- 
quently taken  place,"  and  "as  the  Honorable  the 
Continental  Congress,  the  Supreme  Council  of  the 
American  Colonies,  has  advised  such  of  the  colonies  as 
have  not  yet  gone  into  the  measure  to  adopt  for  them- 
selves respectively  such  government  as  shall  best  con- 
duce to  their  own  happiness  and  safety  and  the  well- 
being  of  America  in  general,"  and  further,  that  "  We, 
the  representatives  of  the  colony  of  New  Jersey,  hav- 
ing been  elected  in  the  freest  manner  and  in  Congress 
assembled,''  resolve  "that  the  government  of  this  prov- 
ince shall  be,"  etc} 

That,  in  some  of  the  colonies,  no  similar  action  was 
taken  for  laying  the  foundation  of  local  government  in 
the  expressed  will  of  "the  people,"  independently  of 

'   Banc,  IV,  342-844,  419.  429      Barry's  Hist,  of  Ma.s.s.,  3(1  period,  p.  96. 
with  many  citations.     2  Gordon,  116. 
•  Force's  Arch  ,  4th  Scries,  VI,  884 
'  Minutes  of  the  Provincial  Congres.s,  itc,  p.  533. 


29 

tlie  sovereignty  of  the  Crown  and  Parliament,  was 
mainly  owing  to  the  organization  and  political  origin 
of  their  existing  governments.  These,  as  was  the  case 
in  Connecticut  and  Rhode  Island,  had  been  so  imme- 
diately connected  with  the  voting  body  of  citizens,  that 
any  new  representation,  specially  summoned  as  on  the 
recommendation  of  Congress,  would  not  be  essentially 
different  from  its  predecessors. 

In  Connecticut  a  new  Constitution  was  not  framed 
before  October,  1776.  Mr.  Johnston,  in  his  history  of 
this  commonwealth,  seems,  by  his  manner  of  stating 
this,  to  connect  it  with  the  recommendation  of  Con- 
gress of  May  15.  Referring,  summarily,  to  the  pro- 
gress of  the  revolution  in  the  colony  in  1776,  he  ob- 
serves— "  In  the  meantime  Connecticut  had  become  a 
State.  In  May,  1776,  the  people  had  been  formally 
released  from  their  allegiance  to  the  crown,  and,  in 
October,  the  General  Assembly  passed  an  act  assuming 
the  functions  of  a  State.  "^ 

The  author  appears  to  attribute  this  release  from 
their  former  allegiance  to  the  will  and  force  of  the 
General  Congress,  expressed  in  the  resolution  of  May 
15,  Mr.  Johnston  having  been  of  that  school  in  histori- 
cal investigation  which  assumes  the  one  people  or 
nation,  lirst,  and  Congress  as  its  mouthpiece  to  create 
States  by  its  fiat.  He  quotes  the  phrase  of  the  new 
Constitution — "This  republic  is  and  shall  forever  be 
and  remain  a  free,  sovereign  and  independent  State" — 
calling  it  "curious" — and  remarks — "The  nation  was 
born,  but  its  constituent  units  were  often  painfully 
unconscious  of  its  birth." 

It  is  worth  our  notice,  as  inquirers  on  this  matter  of 
State  existence,  that  this  volume  of  Mr.  Johnston's  and 

•  Connecticut.  A  Study  of  a  Commonwealth  Democracy.  American 
Commonwealth  Series,  p.  304. 


30 

that  of  Mr.  .TohnEsten  Cooke  on  Virginia,  already  cited, 
are  published  in  a  series,  the  title  of  which — Tlie  Com- 
monwealth Series — implies  that  the  several  writers 
have  each  the  same  conception  of  Commonwealth^  as 
designating  a  State  in  the  Union. 

The  record  of  the  Provincial  Congress  of  New  York 
may  seem  to  present  an  argument  for  not  attributing 
the  existence  of  the  State  government  to  any  will  and 
force  other  than  its  own. 

The  Provincial  Assembly,  in  which  a  majority  op- 
posed the  course  taken  in  the  other  colonies,  dissolved 
Itself  Ajjril  22,  1775.  Executive  authority  was  assumed 
by  self-constituted  committees,  by  whom  delegates  to 
the  Continental  Congress,  as  for  the  province,  were  sent,^ 
until  a  Provincial  Congress  was  elected  ;  which  met 
first,  May  22,  1775.  This  Congress  had  no  other  basis 
than  the  choice  of  those  who,  having  the  franchise 
under  the  preceding  government,  approved  the  move- 
ment. The  majority  vote  was  taken  by  the  counties, 
each  being  arranged  to  have  a  number  of  rejjresentatives 
proportioned  to  its  population. 

This  Provincial  Congress  continued  on  the  same  basis 
without  any  recorded  reference  to  the  consent  of  the 
Continental  Congress,  until  after  the  Declaration  of 
Independence  by  that  Congress,  in  which  its  delegates 
did  not  join.  Some  six  or  seven  days  before  the  reso- 
lution of  Congress  of  May  15th,  1776,  some  Whigs, 
whose  names  have  not  come  down  to  us,  had.  by  a  letter 
through  John  Adams,  "  applied  for  leave  for  this  colony 
to  form  a  government."' 

On  the  day  preceding  the  date  of  the  resolution  taken 
by  the  Philadelphia  committee  for  calling  a  conference 

1  Banc,  IV,  147.  176. 

«  Frothinfrhani ,  p.  49f).  Adams'  Works,  IX,  407.  2  Gordon's  Hist..  269, 
27<». 


31 

of  the  several  counties,  the  question  had  been  raised, 
May  20th,  1776,  in  the  Pennsylvania  Assembly — which 
still  existed  as  organized  under  the  i^roprietary  rights 
of  Penn, — "Whether  the  assemblies  and  conventions 
now  subsisting  in  the  several  colonies  are  or  are  not  the 
bodies  to  whom  the  consideration  of  continuing  the 
old  or  adopting  a  new  government  is  referred."  That 
is — the  reference  to  "the  i)eople,"  as  indicated  by  the 
resolve  of  Congress,  May  15,  and  which  the  Philadel- 
phia conmiittee  called  for. 

But  if  it  was  then  (Xuestiona])le  whether  such  "bodies" 
as  are  referred  to  by  the  Philadelphia  committee,  because 
originally  elected  as  provincial  or  colonial  organs 
under  the  royal  sanction,  were  competent  to  take  the 
initiative  for  the  organization  of  a  new  government,  it 
was  equally  questionable  whether  any  voter  or  body  of 
voters,  either  as  voters  of  a  colony,  or  of  a  county  or 
township,  had  any  more  original  capacity  in  such  an 
act  of  political  jurisdiction.  Such  body  of  electors  or 
any  individual  voter,  holding  the  franchise  under  lam^ 
had  no  more  comj)etency  to  act  in  political  antagonism 
to  the  existing  sovereign  than  had  the  governing 
officials  elected  by  such  voters  under  their  patents  or 
charters. 

As  legal  capacity  or  franchise  of  individual  men,  it 
had  to  be  referred  to  some  sanction  entirely  distinct 
from  all  law  existing  up  to  that  time.  Every  jot  of 
political  right  exercised  by  a  voter,  as  one  of  "the 
people"  of  one  of  the  States,  had  to  be  referred  to  some 
person  or  persons  who  had  the  will  and  the  force  to 
sustain  all  revolutionary  assumption  of  such  rights. 
This  will  and  force  was  either  in  each  colony  severally 
or  in  the  thirteen  colonies,  acting  as  one  claimant  of 
sovereignty.  Hence,  the  subsequent  existence  of  the 
electoral  body  or  political  people  in  each  State  must 


32 

be  referred  to  will  and  force  in  the  revolutionary  action 
of  all  the  colonies,  as  one  State — as  one  possessor  of 
national  sovereignty. 

In  onr  popular  histories,  all  the  revolutionary  action, 
civil  and  military,  of  these  thirteen  voting  bodies  is  repre- 
sented as  action  of  individual  human  beings,  founded  on 
some  law  of  nature,  such  as  is  now  invoked  for  the  right, 
so  called,  of  universal  suffi-age  ;  although  the  qualifica- 
tions demanded  by  the  laws  of  these  colonies  at  that 
period  limited  the  franchise  to  a  much  smaller  propor- 
tion of  the  inhabitants  than  do  the  State  Constitutions 
of  the  present  day.  The  social  compact,  the  consent 
of  the  governed,  etc.^  have  always  been  as  much  invoked, 
in  support  of  such  views,  by  States-rights  men  as  by 
any  others.  Nobody  has  ever  shown  how  a  legal  right 
in  a  majority  of  human  beings,  equally  sovereign  by  the 
law  of  nature,  could  exist,  to  bind  a  minority.  Nobody 
can  explain  why  the  sovereign  Tory  had  not  as  much 
right  to  a  government  of  his  choice  as  the  sovereign  W  hig. 

These  records  of  the  reciprocal  action  of  the  Congress 
of  delegates  from  thirteen  colonial  corporations  for 
which  independent  political  existence  had  not  then  been 
claimed,  and  the  several  voting  peoples  of  those  juris- 
dictions, indicated  to  my  mind  the  political  fact  that 
the  exhibition,  by  the  Continental  Congress,  in  the 
name  of  the  United  Colonies,  of  independent  political 
jurisdiction  over  the  colonial  territory  and  population, 
anticipated  the  Declaration  of  the  Independence  of  the 
States,  July  4,  1776.  They  also  indicated  a  conscious- 
ness that  the  exercise  of  any  independent  jurisdiction 
within  any  colony  or  province  could  rest  only  on  a 
single  will  and  force  manifested  in  the  common  action 
of  thirteen  pre-existing  political  personalities  which 
had  never  possessed  sovereignty  befoi'e  that  time, 
either  for  local  government  or  for  national  existence. 


33 

This  reciprocal  recognition  by  and  of  the  several 
colonies  as  the  political  personalities  which,  in  some 
form  of  union,  would  be  the  future  possessors  of  all 
independent  political  jurisdiction  witliin  their  whole 
territory,  had,  by  most  of  our  early  historians,  hardly 
been  mentioned,  even  incidentally.  It  had  been  passed 
over  as  action  having  no  important  result.  But  these 
same  transactions  have  of  late  been  especially  noticed 
by  writers  who  profess  to  tind  in  them  some  historical 
foundation  for  asserting  the  existence  of  a  supreme 
national  government  antedating  any  apparent  action  or 
intention  of  the  States,  either  as  delegating,  granting  or 
reserving  any  of  the  functions  of  sovereign  power.  So 
these  writers  would  represent  the  Continental  Congress, 
at  and  before  the  date  of  these  transactions,  that  is, 
before  declaring  the  colonies  free  and  independent 
States,  as  the  possessor  of  all  sovereignty  by  its  own 
revolutionary  force  and  will.^ 

A  more  recent  investigator  in  this  field  of  historical 
research,  in  noticing  the  general  prevalence  of  this 
among  other  misconcei)tions,  has  very  justly  said — 
"The  question  proposed  at  the  outset  is:  What  loas 
the  exact  relation  of  the  Continental  Congress  to  the 
colonies  and  States  f  Nearly  all  the  fallacies  in  the 
literature  of  our  constitutional  history  may  be  traced, 
wholly  or  in  part,  to  assumptions  in  answer  to  this 
question.  Our  constitutional  history  cannot  be  written 
with  authority  until  the  question  of  fact  here  raised  is 
settled  by  appeal  to  the  detailed  evidence  on  record."^ 

It  could  hardly  be  expected  of  the  generality  of 
foreign  students  of  our  history  that  they  sliould  be  in- 

1  As  by  Mr.  G.  T.  Curtis  ;  History  of  the  Const.,  I,  25-26. 

■  Thf^  Beginnings  of  American  N'otiondlity,  p.  9,  by  Albion  W.  Small, 
Ph.  D.,  President  of  Colby  University,  Johns  Hopkins  University  Series, 
January-February,  1890. 


34 

formed  of  these  separate  nioveiiients  in  the  road  to 
nationality,  whicli  are  probably  known  by  hardly  one 
in  a  thousand  of  those  among  ourselves  who  think  they 
are  well  posted  on  the  subject.  Itmiglit  be  anticipated 
that  any  foreign  observer  would  be  satisfied  with  tak- 
ing the  Declaration  of  July  4,  177G,  for  the  first  indi- 
cation of  the  assumption  of  independent  political  exist- 
ence and  would  understand  the  claim  as  being,  at  the 
same  time,  made  for  each  State  in  severalty. 

But  no  foreign  critic,  unless  perhaps  Professor  Von 
Holst^  may  be  the  exception,  has  e^i^jressed  the  convic- 
tion that  the  action  of  their  own  delegates  in  the  Conti- 
nental Congress  made  the  States  what  they  were,  or 
that  they  became  wdiatever  they  were,  not  by  their  own 
will  and  force,  but  by  that  of  this  Congress,  as  pos- 
sessor of  supreme  sovereign  powder  for  their  wdiole  terri- 
tory, to  give,  withhold  or  divide  it. 

One  of  the  earliest  attempts  of  the  Judiciary  to 
establish  facts  of  political  existence  as  within  the  scope 
of  legal  decision  is  seen  in  the  case  of  Penhallow  v. 
Doane,  8  Dallas  (1795). 

Mr.  Justice  Patterson,  for  the  majority  of  the  Court, 
uses  expressions  mainly  remarkable  as  illustrating  that 
inability  to  discriminate  between  the  instrument  of 
government  and  the  possessor  of  independent  power 
whicli  so  constantly  appears  in  our  political  literature. 
"  Congress  [referi-ing  to  the  Continental  (-(mgressj  was 
the  general,  supreme  and  controlling  council  of  the 
nation,  the  centre  of  force,  the  sun  of  the  political  sys- 
tem. To  determine  what  their  jiowers  were,  we  must 
inquire  what  power  they  exercised  .  .  .  These  high 
acts  of  sovereignty  were  submitted  to,  acquiesced  in, 
and  a])proved  of  by  the  people  of  America.  In  Con- 
gress were  vested,  because  by  Congress  were  exercised 

'  Const.  Hist.,  I,  p.  4. 


35 

with  the  approbation  of  the  people,  the  rights  and  powers 
of  war  and  peace."' 

Three  members  of  the  Court  expressed  at  the  time 
their  dissent  from  this  political  doctrine.  But  these 
phrases  have  been  repeatedly  cited  by  those  writers 
who  wish  to  prove,  as  from  judicial  decision,  that  the 
States  were  always  in  the  relation  of  subordination  to  a 
central  instrument  of  government.^ 

A  leading  director  of  public  conscience  at  the  North 
has,  in  the  same  spirit,  recently  said,  "Our  own  govern- 
ment arose  from  the  initiative  of  a  body  of  delegates 
who  took  it  upon  themselves  to  act  for  the  country  as 
a  whole,  and,  as  a  matter  of  fact,  assumed  the  functions 
of  a  national  government,  and  did  not,  either  in  the 
form  of  treaties  or  of  a  Constitution,  have  any  legal 
authority  for  their  acts  until  long  after  they  had  com- 
mitted the  country  to  a  step  from  which  there  could  be 
no  retreat.  When,  later,  a  Constitution  was  formed, 
its  preamble  began  with — "  AVe,  tlie  people  of  the 
United  States  ...  do  ordain  and  establish."^ 

From  the  connection  of  this  last  sentence  with  the 
preceding,  it  would  appear  as  if  this  "people""  had 
been  brought  into  being  by  and  was  then  acting  under 
the  coercion  of  the  Continental  Congresses  and  of  the 
Convention  of  1787. 

More  extraordinary  is  it  to  find  such  unsupj)orted 
assertions  accompanied  by  record-proof  of  the  depend- 
ence of  all  the  earlier  Congresses  upon  the  voluntary 
and  several  action  of  the  States,  for  the  execution  of 
any  proposed  measures.     This  undisputed  fact  is  always 

*  Curtis'  Decisions,  I,  87.  See  G.  T.Curtis'  History  of  the  Constitution, 
39-41,  for  an  amplification  of  this  historical  statement. 

*  As  in  It.  Frothinjj:hams  liive  of  the  Republic,  486,  n. 

«  The  Nation,  K.i>v\\  26,  1888,  in  an  article  on  The  Constitutional  Posi- 
tion of  Prussia  in  the  Oerman  Empire. 


36 

brought  out  as  an  argument  for  the  position  that  the 
adoption  of  the  Constitution,  after  ratification  by  the 
States,  must  have  been  effected  by  revoluticmary  action 
of  "the  people"  as  against  these  States. 


IV. 

So  many  Americans  have  recently  put  forward  simi- 
lar views  of  the  political  status  of  the  Continental 
Congress  in  1776,  as  disproving  the  possession  of  sov- 
ereignty in  any  sense  by  the  States,  when  ratifying  the 
Constitution  in  1789,  that  it  is  worth  while  to  notice 
some  indications  of  colonial  opinion  in  anticipation 
of  the  Declaration. 

There  is  the  fullest  possible  record-evidence  that  the 
persons  constituting  the  Continental  Congress  were 
always  in  a  conscious  attitude  of  subordination  on  this 
point  to  the  several  Provincial  or  Colonial  Congresses, 
Assemblies,  Conventions  or  other  bodies  assuming  to 
exercise  authority  in  the  several  colonies,  by  which 
they  were  from  time  to  time  commissioned  as  dele- 
gates. 

This  will  appear  incidentally  from  a  class  of  records 
which  for  us  is  important  more  directly,  as  bearing  on 
our  present  inquiry;  that  is,  whether  up  to  the  date  of 
the  Declaration  any  of  the  colonies  had  anticipated 
that  each  colony  would  assume  the  position  of  a  sev- 
erally sovereign  nation  or  State.  Something  may  be 
learned  by  comparing  the  terms  in  which  the  several 
colonial  authorities  instructed  their  delegates  on  the 
subject ;  as  showing  whether  it  was  the  sovereignty  of 
all,  as  one,  or  the  sovereignty  of  each  one  severally, 
which  was  the  event  in  prospect. 


38 

In  the  earliest  of  any  positive  instructions  on  this 

point,  that  of  the  Provincial  Cono;ress  of  Noi-th  Caro- 
lina, April  12th,  1776,  the  words  empower  the  delegates 
to  concur  in  "declaring  independency  and  forming 
alliances.'"  ' 

In  three  other  instances  the  terms  are  the  same  used 
afterwards  by  the  Continental  Congress, 

As,  first,  by  Virginia,  May  loth,  1776,  "to  declare 
the  United  Colonies  free  and  independent  States  ab- 
solved from  all  allegiance,"  etc.- 

The  Connecticut  Assembly,  June  14th,  1776,  resolved 
unanimously  "that  the  delegates  of  this  colony  in 
Congress  be  and  they  are  herel)y  instructed  to  pro- 
pose to  that  respectable  body  to  declare  the  United 
American  Colonies  free  and  independent  States,  ab- 
solved from  all  allegiance  to  the  King  of  Great  Britain, 
and  to  give  the  assent  of  this  colony  to  such  declara- 
tion when  they  shall  judge  it  expedient  and  best,  and 
to  Avhatever  measures  may  be  thought  proper  and 
necessary  by  the  Congress  for  forming  foreign  alliances 
or  any  plan  of  operation  for  necessary  and  essential 
defense,  and  also  that  they  move  and  promote,  as  fast 
as  may  be  convenient,  a  regular  and  permanent  plan 
of  union  and  confederation  of  the  colonies  for," 
etc.'^ 

The  Maryland  Convention  had,  January  12th,  1776, 
instructed  against  joining  in  declaring  independency, 
but  June  28th,  after  a  special  appeal  to  the  counties 
for  a  vote  on  the  subject,  resolve  for  recalling  tliose 
instructions,  and  that  their  deputies  be  authorized  "  to 
concur  with  the  other  colonies,  or  a  majority  of  them, 

'  Force'.s  Am.  Arcli.,  4tli  Scrios.  V,  859,  S()(). 

*  Force's  Am.  Ar(li.,4tli  St-rit's,  VI,  4G1.  IJurkc'sIIist.  of  Virginia,  IV, 
140. 
«  Force's  Am.  Arch.,  4tli  Series,  VI,  808. 


39 

in  declaring  the  United  Colonies  free  and  inde- 
pendent States,  .  .  .  and  this  colony  will  hold  itself 
bound  by  the  resolutions  of  a  majority  of  the  United 
Colonies  in  the  premises/'  ^ 

This  reference  to  the  determination  of  a  "majority 
of  the  United  Colonies  "  is  significant  on  the  question 
of  several  sovereignty.  It  indicates  the  i)ossibility 
that  a  colonj^  should  be  included  in  the  assertion  of 
independency  against  Great  Britain,  even  against  its 
own  views  of  political  expediency. 

The  Assembly  of  Pennsylvania,  June  8,  1776,  by  re- 
solution, revoked  an  instruction  given  by  them  Novem- 
ber, 1775,  "  to  reject  any  proposition  that  might  cause 
or  lead  to  a  separation  from  Great  Britain,  or  a  change 
of  the  form  of  this  government.''  ''  It  proceeded  to  in- 
struct its  delegates  authorizing  them  to  concur  in  form- 
ing such  further  compacts  between  the  United  Colonies, 
concluding  such  treaties  with  foreign  kingdoms  and 
States,  and  in  adopting  such  other  measures  as  shall  be 
judged  necessary  for  promoting  the  liberty,  safety  and 
interests  of  America." 

The  Provincial  Conference  of  Committees  which,  on 
June  18,  1776,  had  resolved  that  "  the  present  govern- 
ment of  this  province  is  not  competent  to  the  exigen- 
cies of  our  affairs  "  (ante  j^.  27),  on  the  24th  of  the  month 
passed  a  resolution  declaring  "  our  willingness  to  con- 
cur in  a  vote  of  the  Congress  declaring  the  United  Col- 
onies free  and  independent  States."  - 

The  resolution  of  the  Provincial  Congress  of  New 
Jersey,  June  21,  1776,  empowered  the  delegates  in 
Congress  to  join  with  those  of  the  other  colonies  "in 
the  most  vigorous  measures  for  supporting  the  just 

1  Force's  Am.  Arch..  4tli  Series,  IV,  46Ji,  653,  806.  1491.  Gordon's  Hist, 
of  Am.  Revolution,  II,  289.    Browne's  Maryland  (Am.  Com.),  280,  282. 
«  Force's  Am.  Arch.,  4th  Series,  VI,  963. 


40 

rights  and  liberties  of  America,"  and  added,  ''If  yon 
shall  judge  it  necessary  or  expedient  for  this  i)iirpose, 
we  empower  you  to  join  with  them  in  declaring  the 
United  Colonies  independent  of  Great  Britain,"  etc.^ 

The  House  of  Representatives  for  the  Counties  of 
New  Castle,  Kent  and  Sussex  upon  Delaware,  author- 
ized their  delegates,  June  14,  to  vote  respecting  inde- 
pendence according  to  their  judgment.  - 

It  does  not  appear  that  any  sj^ecial  instruction  had 
been  received  from  Rhode  Island  by  its  delegates.  Their 
credentials  presented  in  Congress,  May  14th,  1776, 
dated  May  6th,  were,  however,  broad  in  authority  "to 
consiilt  and  advise  with  the  delegates  of  the  said  colo- 
nies in  Congress  upon  the  proper  measures  promoting 
and  confirming  the  strictest  union  and  confederation 
between  the  said  United  Colonies  for  exerting  their 
whole  strength  and  force  to  annoy  the  common  enemy 
and  to  secure  to  the  said  colonies  their  rights  and  liber- 
ties, both  civil  and  religious,  whether  by  entering  into 
treaties  with  any  prince,  state  or  potentate,  or  by  such 
other  prudent  and  effectual  ways  and  means  as  shall  be 
devised  and  agreed  upon,  and,  in  conjunction  with  the 
delegates  from  the  said  colonies,  or  the  major  part  of 
them,  to  enter  into  and  adopt  all  such  measures,'"  etc.^ 

A  resolution  of  the  General  Assembly,  July  session, 
1776,  refers  to  "the  resolution  of  the  General  Congress 
of  the  United  States  of  America  of  the  fourth  instant, 
and  declaration  that  the  said  colonies  are  free  and 
independent  States,"  .  .  ,  "which  resolution  hath 
been  approved  and  solemnly  puV)lished  by  order  and  in 
presence  of  this  General  Assembly." 

A  letter  from  Virginia,  June  ir)tli,  1776,  is  given  in 

1  Force's  Am.  Arch.,  4th  Series,  VI,  1725. 

=*  IV  Bancroft,  428. 

»  Force's  Am.  Arch.,  4th  Series,  VI,  1669.  Frothiugham's  Rise,  tic.  305 


41 

Force's  Archives,  stating  that  persons  arriving  from 
Georgia  had  reported  that  its  delegates  had  been 
authorized  ''  to  concur  in  any  scheme  that  may  be  pro- 
posed for  the  benefit  of  the  United  Colonies,  even  to  a 
total  separation  from  Great  Britain,  and  that  in  the 
meanwhile  a  form  of  government  had  been  established 
in  the  province."  ^ 

Mr.  Bancroft  represents  the  delegates  of  Georgia  as 
having  had  no  other  instruction  on  this  point  than 
could  be  inferred  from  that  of  February  2d,  1776,  to 
"keep  in  view  the  general  utility,  remembering  that 
the  great  and  righteous  cause  in  which  we  are  all 
engaged  is  not  provincial,  but  continental,  and  concur 
in  all  measures  calculated  for  the  common  good.''  On 
this  he  founds  the  opinion  that  the  delegates  of  that 
colony  were  "free  to  join  in  declaring  independency 
whenever  it  should  be  the  choice  of  the  Continental 
Congress."  ^ 

A  similar  conclusion  may  be  drawn  from  a  resolution 
of  the  revolutionary  convention  of  South  Carolina,  read 
in  Congress  March  1st,  1776,  that  the  delegates  or 
delegate  of  the  colony  are  authorized  in  its  behalf 
"to  concert,  agree  to  and  execute  every  measure 
which  they  or  he,  together  with  a  majority  of  the  Con- 
tinental Congress,  shall  judge  necessary  for  the  defense, 
security,  interest  or  welfare  of  this  colony  in  particu- 
lar, and  of  America  in  general."  ^ 

It  was  not  until  July  3d  that  the  Assembly  in  Massa- 
chusetts, newly  elected  in  1776,  voted  that  "  if  Con- 
gress shall  think  fit  to  declare  the  colonies  independent, 
this  House  will  approve  the  measure."  * 

'  Force's  Am.  Arch.,  4th  Series,  VI,  903. 
»  Bancroft.  IV,  391. 
'  Force's  Am.  Arch.,  4th  Series,  V,  605. 
*  2  Gordon   268. 


42 

In  this  colony,  as  in  Maryland,  Delaware,  Pennsyl- 
vania and  New  York,  those  at  that  time  exercisin<i:  the 
functions  of  a  local  government,  elected  pursuant  to 
the  recommendation  of  Congress,  June  9th,  1775,  had 
not  felt  authorized  to  assent  to  this  step  on  their  own 
responsibility.  They  had  earlier  (May  10th)  in  1776 
called  on  the  "towns,"  then  twenty-six  in  number,  for 
instructions.  Their  assent,  returned  at  various  dates 
in  June,  Avas  expressed  in  various  terms,  as  ''declare 
the  c<)lonies  independent  of  Great  Britain"  ;  "declare 
independence";  "  the  independence  of  America"; 
"  if  they  should  declare  America  a  free  and  indepen- 
dent republic  "  ;  "  w^e  are  willing  to  be  declared  an  in- 
dejDendent  State";  "  independence  and  a  free  repub- 
lic." 1 

The  letter  to  the  delegates  stated  that  independence 
"was  almost  the  universal  voice  of  this  colony,"  col- 
lected from  far  the  greater  number  of  the  towns,  and 
concluded,  "This  House  therefore  do,  by  a  unanimous 
vote,  submit  this  letter  to  be  made  use  of  as  you  shall 
think  proper."  '^ 

A  distinction  in  the  language  of  the  New  Ham^jshire 
instruction  is  remarkable,  June  15th,  1776  :  "  The  com- 
mittee of  both  Houses  appointed  to  i)repare  a  draft  de- 
claring the  sentiments  and  opinions  of  the  council  and 
assembly  of  this  colony  relative  to  the  United  Colonies 
setting  u])  an  independent  State,  beg  leave  to  rejiort 
the  following :  Whereas,  etc.,  resolving  that  our  dele- 
gates be  instructed  "to  join  with  the  other  colonies 
in  declaring  the  thirteen  United  Colonies  a  free  and 
independent  State,"  etc.,  not  States.^ 

'  Force's  Am.  Arch.,  4th  Series.  IV,  698-706. 

*  Massacluisetts  Archives,  LVII,  284.     Cite<l  in    FroUiinghani's /?w*, 
etc.,  508,  note. 

*  Force's  Am.  Archives,  4th  Series,  VI.  1030.  Gordon's  History,  II, 
263. 


48 

These  vnriations  in  the  terms  of  the  instructions  given 
to  their  delegates  by  the  members  of  a  Union  then 
about  to  call  themselves  the  United  States,  may  indicate 
more  or  less  uncertainty  of  purpose  in  the  several  colo- 
nies finally  pledged  by  their  delegates  in  the  Declara- 
tion of  J  uly  4th. 

But,  in  immediate  connection  with  these  instructions, 
we  find  a  condition  attached  in  nearly  every  instance, 
which  of  itself  indicates  the  general  expectation  of  an 
investiture  of  supreme  i)Ower  and  jurisdiction  very 
different  from  a  several  possession  by  each  colony  or 
prospective  State  of  the  sum  total  of  jurisdictional  or 
sovereign  power. 

There  is  some  little  difference  of  phrase  in  the  state- 
ment of  this  condition  ;  but  the  substance  in  all  is 
the  same.  It  is  that  the  independence  which  is  to  be 
gained  by  "the  United  Colonies"  shall  be  such  as  to 
allow  the  particular  colony  or  province,  or  the  several 
people  thereof,  or,  more  generally,  each  such  colony  or 
province,  or  the  several  people  of  each,  to  institute 
local  government  according  to  the  will  of  such  several 
colony,  province  or  people. 

The  resolution  of  the  North  Carolina  Provincial  Con- 
gress of  April  12th,  1776,  for  "declaring  independ- 
ency," added,  "reserving  to  this  colony  the  sole  and 
exclusive  right  of  forming  a  Constitution  and  laws  for 
this  colony,  and  of  appointing  delegates  from  time  to 
time  (under  the  direction  of  a  general  representation 
thereof  )  to  meet  the  delegates  of  the  other  colonies  for 
such  purposes  as  shall  be  hereafter  pointed  out.''  * 

The  resolution  of  the  convention  in  A'^irginia,  May 
15th,  1776,  instructing  its  delegates  in  the  General 
Congress  to  propose  to  that  body  ''to  declare  the 
United  Colonies  free  and  independent  States,  absolved 

»  Force's  Am.  Arch.,  4th  Series,  V,  859,  860,  1322. 


44 

from  all  allegiance,"  etc.^  concluded  with  the  proviso 
"that  the  power  of  forming  government  for  and  the 
regulations  of  the  internal  concerns  of  the  colony  be 
left  to  the  respective  colonial  legislatures."  ^ 

The  resolution  of  June  8th,  1776,  passed  by  the  old 
Assembly  of  the  Province  of  Pennsylvania,  revoking 
its  earlier  restriction  of  its  delegates  and  giving  them 
powers  which  may  have  been  equivalent  to  declaring 
the  independence  of  the  United  Colonies  (ante  p.  39),  con- 
cluded with  these  terms — "reserving  to  the  people  of 
this  colony  the  internal  police  and  government  of  the 
same."  - 

The  resolution  of  the  Conference  of  Committees  of 
Pennsylvania  in  favor  of  declaring  the  independence 
of  the  United  Colonies,  June  24  (ante  p.  89),  concluded 
with  the  words — "  provided  the  forming  of  the  govern- 
ment and  the  regulation  of  the  internal  police  of 
this  colony  be  always  reserved  to  the  people  of  this 
colony."  3 

By  the  resolution  of  the  Connecticut  Assembly  June 
14th,  1776,  instructing  their  delegates  in  Congress  to 
assent  to  declaring  "the  United  American  Colonies 
free  and  independent  States"  (ante  p.  88),  and  to  move 
and  promote  a  regular  and  permanent  plan  of  union  and 
confederation  of  the  colonies  for,"  etc.^  concluded  by 
saying  "  that  the  administration  of  government  for  and 
the  regulation  of  the  internal  concerns  and  police  of 
each  colony  ought  to  be  left  and  remain  to  the  respect- 
ive colonial  legislatures,  and  also  that  such  plan  of 
confederation  be  laid  before  such  respective  legislatures 
for  their  previous  consideration  and  assent.''  * 

'  Force's  Am.  Arch.,  4th  Series,  VI,  461.  Burke's  Hist,  of  Virj;inia,  IV, 
140. 

■  Force's  Arch.,  4th  Series,  VI,  755. 

»  Force's  Am.  Arcli.,  4th  Series,  VI,  963 

*  Force's  Amer.  Arcli.,  4th  Series,  VI,  p.  868. 


45 

In  Maryland,  May  21st,  1776,  the  convention  had 
declared  that  "  it  is  necessary  that  the  exercise  of  every 
kind  of  authority  under  the  crown  of  Great  Britain 
should  be  now  totally  suppressed  in  this  province,  and 
all  the  iDowers  of  government  exercised  under  the 
authority  of  the  people."  They  then  resolved  "that 
the  people  of  this  province  have  the  sole  and  exclusive 
right  of  regulating  the  internal  government  and  police 
of  this  province."  ^ 

When  this  convention,  June  28th,  1776,  passed  the 
resolution  empowering  its  delegates  to  concur  in  the 
Declaration,  it  was  added — "Provided,  that  the  sole 
and  exclusive  right  of  regulating  the  internal  govern- 
ment and  police  of  this  colony  be  reserved  to  the 
people  thereof."  - 

The  instruction  given  by  the  government  of  New 
Hampshire,  June  15,  1776,  for  "declaring  the  thirteen 
United  Colonies  a  free  and  independent  State,"  con- 
cludes :  ' '  Provided  the  regulation  of  our  internal 
police  be  under  the  direction  of  our  own  Assembly."  ^ 

To  the  resolution  of  the  Provincial  Congress  of  New 
Jersey,  June  21st,  1776,  empowering  its  delegates  to 
join  in  declaring  the  United  Colonies  independent,  and 
' '  promising  to  support  them  with  the  whole 
force  of  this  province,"  was  added,  "  always  observing 
that  whatever  plan  of  confederacy  you  enter  into,  the 
regulating  the  internal  police  of  this  province  is  to  be 
reserved  to  the  colony  legislature."  * 

To  the  instructions  of  the  Rhode  Island  colony,  dated 
May  6th,  1776,  which  have  been  cited  as  sufficient  to 

1  Force's  Am.  Arch.,  4tli  Series,  VI,  462. 

8  Force's  Am.  Arch.,  4th  Series,  VI,  1491.    Gordon,  II,  289.     Browne's 
Maryhind  (Am.  Commonwealth  Ser.),  282. 
'  Force's  Am.  Arch.,  4th  Series,  VI,  1030. 
■»  Force's  Am.  Arch,  4th  Series,  VI,  p.  1725. 


46 

authorize  its  dele^rates  to  conoiir  in  declaring  inde- 
pendence, is  added,  ''taking  the  greatest  care  to  secure 
to  this  colony  in  the  strongest  and  most  perfect  man- 
ner its  present  established  fonn  and  all  the  powers  of 
government  so  far  as  lelates  to  its  internal  police  and 
conduct  of  its  own  affairs,  civil  and  religious."  ' 

It  is  obvious  that  if  each  colony  was  to  become  a 
sovereignly  independent  State  as  against  the  world  in 
general,  and  esjjecially  as  against  every  other  State  or 
former  colony,  its  political  authority  to  exercise  gov- 
ernment for  local  interests  and  police  would  be  in- 
cluded in  the  larger  essence  of  such  sovereignty  ;  and 
any  such  mutual  guarantee  of  this  political  freedom, 
as  a  condition  for  united  action,  would  have  been  en- 
tirely superfluous. 

To  us,  who  have  always  in  mind  the  clauses  of  the 
written  Constitution,  this  stipulation  is  likely  to  i^re- 
sent  itself  as  anticipating  that  pledge,  in  the  tenth  Ar- 
ticle of  Amendments,  for  the  continuation  of  a  portion 
of  political  authority  in  the  hands  of  ''the  States"  or 
"the  people,"  which,  being  expressed  by  the  word 
"reserved,"  we  necessarily  regard  as  recognition  of 
some  previous  possession  by  some  grantor  or  grantors 
of  the  sum  of  all  sovereign  power.  So  this  colonial 
stipulation  might  seem  to  us  rather  as  the  aspiration 
for  several  State-sovereignty  than  the  anticipation  of 
anything  different. 

But  regarded  as  the  precaution  of  those  who  had  not 
then  attained  any  sovereign  possession  of  political 
authority,  the  sti])ulation,  in  connection  with  consent  in 
a  joint  effort  to  attain  such  authority,  was  equivalent 
to  a  bargain  as  to  its  distribution  in  exercise.  It  was 
guaranteeing  to  each  other  a  continuance  of  that  local 

'  Force's  Am.  Anli.,  4lli  Series.  VI,  1669, 


47 


self-government  or  antononiy,  which,  as  their  political 
right,  had  been  the  foundation  of  their  claims,  as  colo- 
nies, while  members  of  the  British  empire.  This  they 
proposed  should  remain  as  political  constitution  for 
themselves  ;  whatever  might  result  from  their  separa- 
tion from  Great  Britain. 

Such  local  self-government  should  not  necessitate  a 
several  sovereignty  for  the  States  of  the  future,  any 
more  than  it  had  involved  it  for  the  colonies  or  prov- 
inces, while  these  had  remained  part  and  parcel  of  the 
British  empire. 


,/>■''    Of'   TH 


oy 


■^IFC 


V. 

nesting  on  these  two  facts  as  proved  from  history, 
viz.  : — 

1.  The  actual  dependence  of  each  several  State 
jurisdiction,  for  local  government,  on  will  and  force 
shown  by  the  thirteen  colonies  together  constituting  a 
single  iDossessor  of  sovereignty  ;  and, 

2,  The  condition  indicated  by  them  all,  severally,  as 
inseparable  from  concert  of  action  in  the  attainment  of 
that  sovereignty  for  external  relations  ;  viz.,  the  faculty 
of  independent  local  government  for  each,  while  sus- 
taining that  united  possession  ;  I  arrived  at  the  con- 
clusion, that, 

1.  A  single  i^ossessor  of  the  entire  sum  of  sovereign 
powers  had  come  into  being  in  the  person  of  thiiteen 
States  manifesting  the  will  and  force  to  hold  such 
power  as  one  national  State  within  all  the  territory 
known  as  that  of  the  United  States  ; 

2.  That,  whether  sovereign  powers  can  or  cannot,  in 
theory,  be  divided,  they  were  not  so  divided  in  the  case 
of  these  States,  July  4th,  177G,  and  that,  regarded  as 
sovereign  powers,  those  exercised  in  the  government  of 
each  single  State  and  those  exercised  in  and  for  the 
whole  country  by  a  Congress  were  derived  from  the 
will  and  force  of  all  the  States,  existing  as  one  integral 
sovereignty. 

According  to  this  view,  the  autonomy  of  eacli  State 


49 

rested,  as  political  fact,  on  sovereignty  held  by  the  then 
United  States.  Every  legal  relation  in  any  State,  when 
traced  to  a  sovereign  will  and  force,  rested  on  that  of 
the  United  States  of  1776.  When  the  qnestion  was  of 
responsibility,  as  sovereign,  for  any  law  or  custom  of 
local  extent,  Massachusetts  and  South  Carolina  were 
equally  responsible,  Avhether  it  took  effect  in  one  or  in 
the  other.  Because,  for  acts  of  sovereign  power,  all 
the  States,  in  union,  were  equally  responsible. 

I  could  very  much  wish  there  were  some  English  term 
in  common  use  as  significant  of  such  an  investiture  of 
supreme  political  jurisdiction  as  was,  as  I  conceive, 
exhibited  in  the  genesis  of  the  United  States.  As  far 
as  I  can  learn,  the  word  Bundes-staat,  in  use  with 
recent  German  j)ublicists,  does  correspond  to  such  a 
political  existence.  I  see  no  reason  why  the  term 
Union-state  should  not  be  used,  in  English,  to  express 
the  same  thing.  The  Germans  use  Bundes-staat  as 
distinguishing  from  Staaten-bund.  Mr.  Bryce,  in  a 
note  on  these  terms,  ^  gives  Federal-state  as  answering 
to  Bundes-staat  and  League  of  States  for  8taaten-bund. 
But  by  etymology  and  general  use,  the  word  Federal 
includes  the  idea  of  a  league  of  sovereigns  and  becomes 
indefinite  when  used  in  opposition  to  that  idea.^ 

For  the  purpose  of  this  letter,  I  will  use  the  term 
Union-state  as  expressing  my  conception  of  the  polit- 
ical organism  which  came  into  being  with  the  Declara- 
tion of  Independence. 

This  political  system,  or  unwritten  political  consti- 
tution, underlying  all  administrative  functions  in  the 
new-born  national  State,  was  not  the  result  of  conscious 
choice  on  the  part  of  any  of  those  patriots  and  states- 

^  American  Commouwcalth,  1,  p.  29. 

»  Mr.  Woodrow  Wilson  also  uses  Federal-state  as  the  equivalent  of 
Bundes-staat.     The  Slate,  Sec.  1142. 


50 

men  whose  energies  contributed  to  this  result.  It  was 
forced  upon  the  colonies,  as  existing  political  l)odies, 
by  the  circumstances  in  which  they  found  themselves, 
and,  for  the  people  or  nation,  it  was  their  providential 
constitution  ;  as  Brownson  called  it. 

Neither  should  it  be  claimed  that  this  was  altogether 
a  novelty  in  the  history  of  political  constitutions.  The 
originality  of  any  essential  change  which  may  have 
taken  place  afterwards,  as  in  the  adoption  of  the 
written  Constitution  of  1789,  is  a  different  matter. 
Two  very  conspicuous  examples  of  a  similar  possession 
of  sovereignty  were  then  in  existence,  from  dates  long 
anterior  to  that  of  the  independence  of  the  American 
Union.  The  United  Provinces  of  Holland  and  the 
League  of  the  Swiss  Cantons  had  i)resented  a  basis  es- 
sentially the  same.^  They  all  differed  from  any  simple 
federation  or  league  of  severally  sovereign  communi- 
ties, such  as  had  been  the  Achaean  League  in  Greece 
and  others  in  ancient  times  ;  where  the  only  Constitu- 
tion was  in  the  will  and  force  of  the  strongest  member, 
exhibited  in  an  international  relation  or  aspect. 

No  Dutch  i^rovince  or  Swiss  Canton  was  recognized 
as  having  exhibited  the  several  sovereignty  of  a  national 
State.  Yet  each,  by  reciprocal  support,  had,  from  their 
earliest  united  existence,  as  distinct  from  any  under 
ancient  feudal  relations  to  king  or  emperor,  exercised 
local  jurisdiction  independently  ;  while  at  the  same 
time  all  the  provinces  or  Cantons  constituted  one  sov- 
ereign nation  or  State,  acting  by  some  common  agent 

1  Mr.  James  Wilson  (Elliott's  Debates,  2,  422)  denied  the  parallelism. 
There  is  not  the  slightest  reason  to  believe  in  an  intention  to  eopy. 
Whether  the  parallelism  between  the  Swiss  confederation  and  the  Amer- 
ican Union  has  always  been  the  same  during  the  past  century  of  their 
history  may  be  questioned.  Most  English  observers  rej)reseut  them  as 
more  nearily  alike  at  present  than  ever  before.  Compare  Bryce,  Am. 
Comm.,  I,  20.  400. 


51 

of  government  deriving  authority  from  them  as  so 
many  possessors,  in  unity,  of  the  total  of  political 
jurisdiction. 

Mr.  Bryce^  has  remarked — "  It  is  often  assumed  by 
writers  on  constitutional  subjects  that  a  federal  govern- 
ment presupposes  a  written  or  rigid  Constitution.  This 
is  not  necessarily  so.  There  have  been  federations  with 
no  fundamental  rigid  Constitution.'''  This  is  true,  not 
only  of  federations  strictly  so  called,  or  leagues  be- 
tween mutually  independent  sovereignties,  but  also  in 
the  case  of  unions  such  as  were  the  Dutch  Provinces 
and  Switzerland,  and  also  in  the  case  of  the  United 
States,  during  the  first  period  of  their  existence  as  a 
nation.  In  such  a  Union-state,  the  organ  of  govern- 
ment for  many  purposes  of  national  existence  might 
even  be  one  of  the  several  members.  As  was  at  one 
time  the  Canton  Berne,  for  Switzerland. 

But  even  in  such  case,  and  still  more  properly  when 
the  organ  of  such  a  Union-state  has  been  specially 
created  for  such  purposes  by  the  common  will  of  the 
members,  their  organ  may  be  called  theiv /ede?'al 
governments  from  its  representative  character,  even 
though  the  respective  members  are  not  federated  as 
severally  sovereign. 

Aside  from  our  own  estimate  of  the  relative  superi- 
ority of  our  forms  of  political  existence,  we  Americans 
sometimes  talk  as  if  there  had  been  some  idea  native 
to  the  soil,  bringing  about  the  development  of  our 
institutions,  over  and  above  the  conscious  thought  of 
any  particular  man  or  men.  At  the  same  time  we  give 
credit  for  extraordinary  wisdom  to  ' '  the  fathers  and 
founders.''  If  this  conception  of  our  nationally  ac- 
quired sovereignty  may  be  supposed  to  have  originated 
in  human  l)rains,  it  might  justly  be  distinguished  as 

'  Am.  Comm.,  I,  p.  33,  note. 


52 

the  New  Hampshire  idea  ;  since  the  facts  in  which  it 
was  manifested  were,  as  political  actions,  most  clearly 
proposed  by  that  colony  in  the  resolutions  of  1775  and 
1776  which  have  been  cited. 

The  distinction  between  the  instrumentality  of  gov- 
ernment and  the  investiture  of  sovereign  power  is 
especially  essential  in  a  national  history  such  as  ours. 
In  any  league  or  compact  of  sovereigns  it  is  obvious 
that,  while  they  may  have  some  common  instrument  or 
agent  not  identical  with  any  one  several  member  of  the 
league,  such  agent  cannot  hold  powers  independently, 
or  even  exist  independently,  as  against  any  of  the  sev- 
eral members  of  such  a  confederation  or  league.  The 
withdrawal  or  secession  of  one  or  more  members  is 
matter  of  question  only  for  the  other  members  of  the 
federation.  The  supposed  agent,  however  powerful  as 
a  common  instrument  of  government,  has  neither  right 
to  enforce  nor  duty  to  fulfill  against  the  withdrawing 
member.  Being  agent,  only,  its  very  identity  is  lost 
by  the  withdrawal  of  a  single  member  ;  even  if  a  pre- 
cisely similar  agent  should  lie  employed  by  the  remain- 
ing members.  This  latter  agent  may  be  empow^ered  by 
these,  as  a  new  league,  either  to  compel  reunion  or  to 
punish  the  desertion.  But  any  measures  taken  in  that 
sense  would  be  international  war  or  dii)lomacy,  as  be- 
tween this  agent  of  government  and  the  seceding  mem- 
ber. There  would  be  no  treason  on  the  part  of  such 
seceding  member  or  of  its  citizens,  toward  such  agent ; 
because  tlieie  would  be  no  allegiance  due  by  any  of  the 
members  or  their  citizens  towards  it  or  towards  the 
other  members  of  the  league  or  federation,  as  such. 

In  the  case  of  the  united  possession  of  sovereignty 
by  a  number  of  Provinces,  Cantons  or  States,  such  as 
was,  in  my  view,  that  of  the  thirteen  American  States 
in  177(5,  it  is  equally  plain  that  any  common  agent  of 


53 

government  could  not  liave  a  separate  existence,  as  a 
sovereign  power-holder,  as  against  the  members  of  such 
Union-state,  and  therefore  would  not  have  any  intrinsic 
right  of  dominion  as  against  any  Province,  Canton  or 
State  proposing  to  withdraw  from  such  union. 

But,  in  this  case,  the  relation  of  the  remaining  Pro- 
vinces, Cantons  or  States  of  the  Union  towards  the  sece- 
ding member  would  be  essentially  different  from  that 
of  any  severally  sovereign  States  in  federation  or  league 
towards  a  former  associate,  in  case  of  attempted  with- 
draw^al.  For  this  reason  the  existing  agent  of  general 
or  united  government  would  sustain  a  different  relation 
towards  the  seceding  member,  from  that  betw^een  the 
agent  for  a  confederation  of  sovereigns  and  a  seceding 
member.  In  enforcing  the  rights  of  the  Union-state, 
the  measures  taken  by  its  agent  would  not  have  the 
sense  of  international  war  or  diplomacy,  even  when 
relations  of  belligerency,  de  facto  as  between  the 
parties,  had  been  recognized.  For,  in  the  case  of  such 
a  union,  the  single  Province,  Canton  or  State  had  not 
possessed  sovereignty  or  any  political  jurisdiction 
whatever,  except  as  voluntarily  continuing  in  a  united 
possession  of  the  sum  of  sovereign  political  power. 

This  power  would  have  embraced  and  sustained  the 
several  government  of  each  member  of  the  Union-state 
over  all  j^ersons  and  jDroperty  Avithin  its  territorial 
limits.  The  refusal  of  some  several  member  to  share 
in  this  dominion  Avould  not  affect  the  extent  of  such 
dominion.  All  persons  who.  before  such  refusal,  were 
or  should  be  included  under  tliis  dominion,  would  still 
owe  an  allegiance  to  the  Union-state  as  constituted  by 
its  sovereignty  vested  in  the  members  remaining  united  ; 
without  reference  to  any  claim  of  local  jurisdiction 
made  by  the  seceding  Province,  Canton  or  State.  Its 
citizens  w  ould  be  liable  for  treason  against  this  Union- 


54 

state  and  against  the  agent  of  government  represent- 
ing it. 

Tlie  only  reason  for  this  condition  of  things  woukl 
be  found  in  the  political  fact — that  the  will  and  force 
to  maintain  sovereignty,  in  the  case  of  any  of  these 
Provinces,  Cantons  or  States,  had  been  exhibited  by 
them  as  a  union  and  not  severally. 

This  exercise  of  dominion  l)y  the  continuing  mem- 
bers of  the  Union-state,  through  its  agent  of  govern- 
ment, over  persons  and  things  within  the  territory  of 
any  seceding  member,  would  be  their  political  right — 
a  right  growing  out  of  their  essential  political  consti- 
tution in  distinction  from  any  right  resting  on  law  ; 
whether  called  Constitution  or  not,  because  it  would 
not  be  a  right  in  a  relation  established  by  a  political 
superior. 

As  sovereign  right  it  would  continue — subject  to  one 
condition,  viz. — that  will  and  force  to  maintain  that 
dominion  should  be  exhibited  by  those  claiming  the 
right. 

In  the  absence  of  either  the  will  or  the  force — that  is 
— if  the  seceding  Province,  Canton  or  State,  or  a  number 
of  such,  should  by  any  means  maintain  independent 
jurisdiction,  the  right  of  dominion  in  the  Union-state 
over  the  territory  and  inhabitants  of  such  Provinces, 
Cantons  or  States,  would  be  proved  not  to  exist.  Be- 
cause sovereignty  and  the  right  of  dominion  depend 
solely  on  will  and  force. 

Whenever,  after  I  had  arrived  at  such  concei)tions 
as  these  of  the  possible  location  of  su])reme  i)()litical 
jurisdiction,  I  have  taken  up  any  work  relating  to  our 
earlier  history,  including  that  of  the  adoption  of  the 
Constitution,  each  familiar  event  ])resented  itself  with 
a  new  significance.  The  details  which  had  api)eared 
as  isolated  and  inconsequent  occurrences  marshalled 


55 

themselves  as  all  animated  by  a  single  directing  energy, 
working  for  a  definite  purpose. 

In  what  had  stood  in  the  record  as  the  tumultuary 
resolves  and  acts  of  private  individuals,  excited  by 
vague  aspirations  for  personal  independence,  could  be 
recognized  the  action  of  political  entities,  capable  of 
that  will  and  force  by  which  all  States  and  Empires  live, 
move  and  have  their  being.  Such  conceptions  furnished 
the  standard  by  which  the  deed  of  each  acting  patriot 
could  be  estimated.  By  it,  it  was  possible  to  measure 
the  distance  between  the  violence  which  the  armed 
farmers  brought  to  Lexington  and  Concord,  and  the 
manslaughtering  presumption  of  a  crowd  of  disorderly 
whites  and  negroes  on  Boston  Common. 

By  the  same  standard  it  was  possible  to  compare  the 
several  purpose  and  several  achievement  of  those 
leaders  who,  in  civil  life,  from  all  pai'ts  of  the  unde- 
termined national  domain,  labored  to  secure  for  the 
people  that  political  unity  which  should  give  form  and 
substance  to  that  liberty  which  exists  by  protection 
under  law. 


VI. 

By  understanding  the  national  existence  at  that 
moment  as  thus  stated,  we  may  find  something  corre- 
sponding with  the  facts  in  a  resohition  adopted  by  the 
Continental  Congress,  June  24th,  1776,  virtually  antici- 
pating the  Declaration  of  July  4th— "Resolved  that 
all  persons  abiding  within  any  of  the  United  Colonies 
and  deriving  protection  from  the  laws  of  the  same,  owe 
allegiance  to  the  said  laws,  and  are  members  of  such 
colony."  It  further  charged  that  "  all  members  of  or 
owing  allegiance  to  any  of  the  United  Colonies,  as 
above  described,  who  shall  levy  war  against  any  of  the 
said  colonies,  within  the  same,  or  be  adherent  to  the 
King  of  Great  Britain,  or  others,  or  the  enemies  of  the 
said  colonies,  or  any  of  them,  are  guilty  of  treason 
against  such  colony."  It  also  recommended  "to  the 
legislatures  of  the  several  United  Colonies  to  pass 
laws  for  punishing  .  .  .  such  persons  provably  at- 
tainted of  open  deed  ...  of  any  of  the  treasons 
before  described."^ 

Mr.  Bancroft  making  this  citation  (Banc.  Hist.,  IV, 
425),  gives  this  as  his  understanding  of  the  political 
effect  of  the  resobiticm  : 

"  The   fellow  subjects  of   one   king   l>ecame   fellow 

1  Force's  Am.  Arch.,  4  Ser.,  VI,  17'2(). 


57 

lieges  of  one  republic,  they  all  had  one  law  of  citizen- 
ship and  one  law  of  treason/' 

This  remark  is  consistent  enough  if,  by  lieges  and 
citizens,  we  understand  precisely  what  is  more  defi- 
nitely conveyed  by  the  teiTn  subjects.  AVhere  there 
are  no  subjects  there  can  be  no  treason.  Alle- 
giance and  subjection  involve  the  existence  of  what 
is  called  sovereignty  ;  which  can  exist  only  by  the 
existence  of  a  person  or  persons  holding  it.  Alle- 
giance cannot  be  due  to  laws,  but  only  to  him  or  them 
to  whose  will  and  force  the  laws  can  be  traced.  To 
speak  of  allegiance  due  to  a  republic,  or  to  any  form 
of  government,  is  to  put  an  abstract  conception  in  the 
place  which  can  be  filled  only  by  living  human  beings, 
capable  of  will. 

Before  treason  can  be  spoken  of,  there  must  be  the 
sovereign  and  the  subject.  Or,  if  the  dainty  ears  of 
this  century  cannot  endure  these  words,  say — the  ruler 
and  the  ruled.  In  the  Union-state,  the  rulers  can  be 
found  as  easily  as  in  a  monarchy  or  oligarchy.  They 
are  those  to  whose  will  and  force  in  the  several 
Provinces,  Cantons  or  States,  being  united,  all  law, 
civil  and  criminal,  can  be  traced.  These,  in  one  mem- 
ber of  the  Union-state,  might  be  a  few  persons,  com- 
paratively, and  many  similar  persons  in  another  such 
member :  as  the  case  was  in  Switzerland.  Here,  in 
our  existence  as  a  nation,  it  has  always  been  those  who, 
in  each  of  the  States,  voluntarily  united  as  States, 
have  held  the  elective  franchise  by  law  proceeding 
from  themselves  collectively,  as  political  corporation 
or  State. 

But  whatever  may  be  said  for  the  view  here  i)re- 
sented  of  the  States  existing  only  as  one  sovereign 
Union-state  in  1776,  it  is  clear  from  history  that  they 


58 

soon  afterward  began  to  manifest  an  increasing  feeling 
of  several  independence. 

There  liad  been  a  constant  apprehension  in  the  Con- 
tinental Congress,  before  the  Declaration,  lest  any 
colony  should  make  terms  severally  for  itself,  with  the 
British  Government.  The  king  had  been  inclined  to 
negotiate  with  them  severally,  as  each  having,  as 
colony  or  province,  a  distinct  political  status  in  the 
empire ;  while  he  refused  any  negotiation  with  Con- 
gress, as  representing  a  union  ;^  which  he  justly  re- 
garded as  self-assertion  of  a  political  entity  without 
a  place  in  the  eye  of  public  law. 

In  the  treaty  of  peace  of  1783,  the  States  appeared 
only  by  their  several  colonial  names,  being  designated 
as  "free,  sovereign  and  independent  States,"  in  rela- 
tion to  their  former  sovereign  ;  and  there  can  be  little 
doubt  that  the  king's  government  looked  upon  them 
as  certain  to  assert  a  several  political  independence, 
as  to  each  other,  and,  before  long,  to  wish  to  return, 
one  by  one,  to  the  protected  condition  of  a  colony. 
Most  European  statesmen  probably  took  the  same 
view.  "We  must  see  that,  as  to  outward  appearance, 
it  is  difficult  to  discriminate  between  a  league  of 
sovereign  States  and  a  sovereign  Union-state,  as  here 
described.  It  is  inevitable  that  tlie  geographical 
element  should  be  very  important.  The  Provinces  of 
Holland  and  the  Swiss  Cantons  had  been  localized  in 
compact  groups,  under  the  pressure  of  neighbors,  who 
were  strong  and  ambitious  monarchies,  coveting  their 
lands  and  ready  to  divide  them  as  spoil  of  war.  Here, 
in  the  view  of  Europe,  were  thirteen  petty  republics 
strung  along  the  Atlantic  coast,  each  accessible  by  the 
ocean  higliway.  Their  only  neighbors  were  colonies 
North  and  South,  on  the  same  coast,  and  behind  tliem 

'  IV  Bancroft,  270,  310,  395. 


59 

a  territory,  which,  to  the  mind  of  the  European,  was 
as  vacant  as  the  sea  before  them.  They  themselves 
could  not  foresee  that  this  territory  was  the  great 
fixative  mortar-bed,  for  which  the  Atlantic  States 
would  so  soon  be  like  fragments  of  mosaic  in  the  varie- 
gated border  of  the  wide  continental  pavement. 

The  phraseology  of  the  Declaration  may  have  been 
due  to  the  aspirations  of  the  larger  States.  The 
delayed  assent  of  the  Province  of  New  York,  may  have 
depended  on  this  wording.  It  certainly  was,  as  much 
as  the  Resolution  of  Congress  of  June  24th,  an  invita- 
tion to  each  State  to  assert  sovereign  rights  ;  such  as 
were  asserted  in  July,  1776,  when  the  legislatures  of 
New  York  and  New  Jersey,  in  words  closely  following 
the  phrase  of  the  resolution  of  Congress,  resolved  that 
each  inhabitant  owed  allegiance  to  the  State,  and 
might  be  chargeable  with  treason  against  it.  A  ten- 
dency in  this  direction  was  to  be  anticipated,  in  the 
larger  States  from  a  hope  of  hegemony,  and,  in  the 
smaller,  from  a  desire  to  maintain  their  political 
equality.^ 

Whenever  a  country  is  engaged  in  war,  the  functions 
of  the  instrument  of  general  government,  whatever 
it  may  be,  are  extended.  Herbert  Spencer  says^  "It 
is  observed  by  Ranke  that,  during  the  wars  with  the 
English  in  the  loth  century,  the  French  monarchy, 
while  struggling  for  its  very  existence,  acquired  at  the 
same  time,  and  as  the  result  of  the  struggle,  a  finuer 
organization.  The  expedients  adopted  to  carry  on  the 
contest  grew,  as  in  other  important  cases,  to  national 
institutions.  Modern  instances  of  the  relation  between 
successful  militancy  and  the  strengthening  of  political 

'   New  York,  .July  16, 1776;  Force's  Am.  Arch.,  5th  Ser.,  I,  446.    New 
Jersey.  July  18,  1776.    lb.,  369,  412. 
-  Political  Institutions,  ^  474. 


60 

control  are  furnished  by  the  career  of  Napoleon  and 
the  recent  history  of  the  German  empire." 

The  state  of  war  is,  for  the  time,  a  Constitution  of 
government.  Here,  when  the  war  of  Independence 
ended,  the  essential  vigor  of  the  common  instrument 
seemed  to  decline,  and  the  governments  of  the  States 
could  assert  the  authority  which  peace  invited  them  to 
display. 

But,  that  the  essential  conditions  of  their  political 
existence  continued,  is  proved  by  the  continuation  of 
their  international  status,  as  one  Union- state. 

Whatever  the  colonies  should  become  was  to  be 
effected  by  themselves  ;  that  is,  by  their  own  will  and 
force  as  political  bodies  or  corporations.  In  this  they 
w^ere  neither  better  nor  w^orse  off  than  other  claimants  of 
supreme  political  jurisdiction.  No  use  of  words,  no 
assertions  of  political  justice  or  moral  right,  no  appeals 
to  the  Deity  or  to  a  law  of  nature  can  take  the  place  of 
such  will  and  force.  ^  But,  whether  it  has  been  mani- 
fested or  not  is  an  international  question.  That  is,  the 
only  proof  of  the  sufficing  will  and  force,  in  any  case, 
is  their  practical  recognition  by  pre-existent  holders  of 
supreme  political  jurisdiction  or  sovereignty. 

Even  if  the  colonies  had  formally  recognized  each 
other  as  severally  sovereign,  this  would  not  liave  liad 
a  similar  effect  as  proof  of  their  status  among  nations.  ^ 
It  would  not  have  been  international  recognition  as  to 
any  of  them,  liecause  none  of  them  had,  as  yet.  attained 
that  recognition  from  the  rest  of  the  world.  The 
British  government  could,  indeed,  relinquish  all  future 
claims  of  dominion  within  the  territory  of  these  thir- 

'  Compare  the  citations  <fiven  lierein  (yw'sO  ffom  !»"  .l'^</n7<j«l)y  John 
(i»iincy  A(hinis. 

«  As  jirovinfr  llieir  status  as  between  llieinsclves— it  niii:iit  be  a  very 
different  thinj;. 


61 

teen  colonies,  but  it  could  not  by  any  treaty  make 
them  sovereign,  either  jointly  or  severally.  The 
phraseology  of  some  treaties  may,  perhaps,  seem  to 
indicate  some  conception  on  the  part  of  foreign  states- 
men, of  the  existence  of  the  States  in  a  federative  union. 
But  no  action  of  foreign  powers  involved  recognition  of  a 
separate  will  and  force  in  each  State.  All  such  action 
was  recognition  of  the  will  and  force  of  the  Union- 
state  only. 

It  has  occurred  to  me  that  an  argument  for  asserting 
the  possession  of  several  sovereignty  by  the  original 
thirteen  might  be  based,  though  I  have  not  seen  it  so 
used,  on  the  Eleventh  Article  of  Confederation, 
adopted  "July  9th,  1778,  third  \^ear  of  the  Independ- 
ence of  America,"  in  the  phrase  of  its  publication — 
"XI;  Canada,  acceding  to  this  confederation  and  joining 
in  the  measures  of  the  United  States,  shall  l)e  admitted 
into  and  entitled  to  all  the  advantages  of  this  union  ; 
but  no  other  colony  shall  be  admitted  into  the  same, 
unless  such  admission  be  agreed  to  by  nine  States." 

Here,  it  might  be  argued,  is  a  provision  for  extension 
of  a  league  by  the  voluntary  accession  of  an  avowedly 
foreign  and  alien  body,  which,  as  such,  would  be  neces- 
sarily sovereign.  Therefore,  each  of  the  thirteen  must 
have  been  regarded  as  equally  foreign  and  alien  in 
respect  to  each  other ;  except  as  confederated  by  this 
international  league. 

AVe  nuist  try  to  distinguish  between  the  conception 
of  our  present  relation  to  Canada,  and  that  which  the 
statesmen  of  1778  had  when  the  revolution  of  thirteen 
colonies  had  not  attained  its  full  accomplishment. 
That  conception  is  indicated  by  their  using  the  term 
"Independence  of  America."  It  was  the  same  idea 
which  induced  the  use  of  the  word  Continental,  in  con- 
nection with  the  Congress  and  the  army.     They  had 


62 

hoped  to  secure  the  independence  of  every  colony  by 
the  will  and  force  of  a  continent  of  colonies.  The  inva- 
sion of  Canada  in  1775  had  been  thought  advisable  to 
secure  the  exposed  northern  frontier  of  New  York  and 
New  Hampshire,  But  it  was  conducted  with  the  idea 
that  the  Canadians  would  gladly  separate  from  the 
British  empire,  and  Avould  contribute  their  force  to 
the  establishment  of  a  continental  State.'  Montgomery 
anticii:)ated,  in  case  of  the  capture  of  Quebec,  call- 
ing a  convention  of  the  people  for  a  government  of  the 
Province  to  be  recognized  as  another  member  of  the 
Union.  ^ 

In  the  case  of  any  avowedly  sovereign  foreign  body 
added  to  this  Union,  after  the  attainment  of  inde- 
pendence, the  character  of  such,  as  new  member  of 
this  Union,  would  be  settled  by  the  real  nature  of  such 
Union  at  that  moment.  Admitting  it  to  be  then  a 
league  of  sovereigns,  as  in  your  view  it  always  has 
been,  the  new  member  would  continue  a  several 
sovereign  in  the  league.  So,  I  suppose  you  would 
regard  Texas,  when  annexed  in  1845,  as  such  ;  and 
consistently.  But,  if  the  Union-state  then  existed,  as 
I  have  described  it,  Texas  accepted  a  place  in  that 
single  possession  of  sovereignty,  extending  over  the 
entire  domain  of  the  United  States  ;  and  so  necessarily 
abandoned  all  other  sovereignty,  accepting  autonomy, 
as  State,  while  acquiring  sovereignty  as  member  of  the 
Union-state,  and  only  as  such. 

If  the  instrument  of  government,  under  the  Articles 
of  Confederation,  bore,  as  may   certainly  be  claimed, 

^  Address  to  the  inhabitauts  of  Quebec,  Get.  26,  1774,  Journal  of  Con- 
gress, I,  40-45,  and  to  "  the  ojipressed  inhabitants  of  Canada,"  May  29, 
1775,  Ih.,  I,  74-6.  Small's  Beginnini!:s  of  American  Nationality,  33,  57. 
Johns  Hopkins  University  Studies,  Jan. -Feb.,  1890. 

*  Bancroft,  IV,  302,  303. 


63 

a  name  suited  to  a  league  of  sovereigns,  it  no  more 
established  such  a  condition  of  things  than  did  the  name 
Congress^  as  used  by  the  delegates  of  the  United 
Colonies ;  a  name  which  had  also  been  adopted  by 
several  of  the  colonial  governments  during  the  revolu- 
tionary period.  The  continuation  of  the  same  essential 
conditions  was  as  possible  when  the  power  of  the  Union- 
state  was  exercised  by  the  second  instrument  as  when 
it  had  been  by  the  first. 

Of  the  States  recognized  by  the  King  of  England  in 
the  Treaty  of  Paris  as  free,  sovereign  and  independent, 
two,  Delaware  and  Georgia,  could  hardly  be  said  to  have 
attained  to  political  existence,  even  as  distinct  col- 
onies, until  they  had  appeared  by  delegates  in  the  Con- 
tinental Congress. 

"The  three  counties  on  Delaware"  were  a  fragment 
of  jurisdiction  in  dispute  between  the  Provinces  of 
Maryland  and  of  Pennsylvania.  Georgia  was  in  a 
still  more  inchoate  state  as  a  new  settlement. 

Assuming  that  every  State  that  has  been  added  to 
the  Union  since  1789  must  be  allowed  equal  claim  for 
political  independence  with  any  one  of  the  original 
thirteen,  the  deficiency  of  several  w^ill  and  force,  ade- 
quate to  the  possession  of  sovereignty,  would  become 
more  palpable  in  proportion  to  the  increasing  number 
of  States.  However  small  the  pretensions  to  several 
force  and  will,  adequate  to  indej)endent  existence, 
which  may  have  been  recognizable  in  some  of  the  States 
of  the  original  Union,  an  equal  claim  could  hardly  be 
asserted  in  the  case  of  Vermont,  the  first  State  admitted 
under  the  Constitution,  which,  as  to  jurisdiction,  had 
been  in  dispute  between  New  York  and  New  Hampshire. 
Nor  could  it  be  made  in  the  case  of  Tennessee,  which, 
as  "Frankland,"  or  of  Kentucky,  which,  as  "Transyl- 
vania," had  proposed  to  set  up  a  several  government 


64 

in  territory  claimed  by  North  Carolina  or  by  Virginia, 
So  in  the  case  of  other  States,  afterwards  formed  in  the 
Western  lands.  And,  when  the  number  of  States  in- 
cluded between  the  two  oceans  has  nearly  attained  to 
three  times  the  original  figure,  it  seems  a  rechtctio  ad 
ah.nirclum  to  attribute  to  each  one  the  possession  of  sev- 
eral sovereignty.  Of  course  this  may  be  done  in  all  con- 
sistency by  those  who  claim  that  sovereignty  is  gen- 
erated by  consent.  On  the  same  basis  it  might  be 
attributed  to  counties  and  towns  ;  or,  for  that  matter, 
to  each  living  man  and  woman  ;  as  it  has  been  by  many 
who  hold  that  theory. 

If  there  is  any  special  politico-ethical  principle  in 
this  country  to  settle  the  location  of  suj^reme  power, 
better  than  the  manifestation  of  will  and  force,  no 
foreign  government  is  obliged  to  notice  it.  The  powers 
knoAvn  as  the  Holy  Alliance  made  the  mistake  of  sup- 
posing that  the  divine  right  of  dynastic  kings  was 
such  a  principle  for  Europe ;  as  against  the  will  and 
force  of  the  first  French  Republic  and  the  first  Em- 
pire. There  are,  among  ourselves,  some  who  claim  a 
right  as  truly  suiDernatural  for  the  people  or  nation, 
regardless  of  historical  organization.  You  and  your 
friends  do  not,  probably,  claim  a  similar  "divine 
right"  for  State-sovereignty,  but  you  might  well  waive 
any  claim  of  that  sort,  as  against  these  same  American 
Legitimists,  as  long  as  you  can  cite  the  language  of  so 
many  among  them,  in  support  of  your  proposition  that, 
as  matter  of  fact,  the  original  thirteen  were  absolutely 
sovereign,  as  several  States. 


VII. 

The  issue  we  had  proposed  was  limited  to  the  sov- 
ereignty of  the  several  States  before  the  inauguration 
of  the  new  system  in  1789.  But  the  interest  which 
most  people  would  find  in  that  historical  question  lies 
in  its  bearing  on  the  position  of  any  State  or  States  in 
respect  to  whatever  government  existed  at  the  time 
of  what  we  call  "the  war"  of  1861-1865,  whether 
regarded  as  civil  war  or  as  international.  Indeed,  the 
variety  of  opinion  on  that  historical  question  has  ap- 
peared only  in  discussions  as  to  the  nature  and  origin 
of  this  government. 

If  a  historical  question  could  be  settled  by  what  is 
called  "authority,"  you  might  find  abundant  support 
even  from  the  majority  of  those  who  deny  the  several 
sovereignty  of  the  States  after  the  adoption  of  the  Con- 
stitution. This  statement  hardly  needs  any  corrobo- 
ration. Every  one  in  the  least  conversant  with  our 
political  literature  will  admit  it. 

But  it  is  well  to  bear  in  mind  that  this  several  sov- 
ereignty of  each  State  before  that  event  is  unavoidably 
assumed  by  all  who  have  regarded  the  Federal  Govern- 
ment as  possessed  of  some  of  the  powers  of  sovereignty 
by  irrevocable  cession  or  transfer  from  each  several 
State,  in  the  adoption  of  the  Constitution. 

For  there  is  one  very  common  opinion,  in  harmony 


66 

with  this  view  of  our  early  history  and  accepted  by 
nearly  all  those  who  oppose  the  States-rifi:lits  doctrine, 
which  should  here  be  noticed,  as  showing  the  existing 
confusion  of  ideas  on  the  subject. 

Nearly  all  the  publicists  of  every  other  school,  just 
as  much  as  your  States-rights  advocates,  would  accept, 
as  historical  fact,  the  statement  that  the  force  and 
effect  of  the  Constitution,  as  law,  began  on  its  being 
ratified  by  nine  States,  conformably  to  Article  VII  of 
the  proposed  Constitution — "The  ratifications  of  the 
conventions  of  nine  States  shall  be  sufficient  for  the 
establishment  of  this  Constitution  between  the  States 
so  ratifying  the  same/'  All  these  would  at  the  same 
time  say  that  the  political  authority  of  the  new  govern- 
ment, when  inaugurated,  was  to  be  co-extensive  only 
with  the  prior  dominion  of  such  nine  and  such  other 
States  as  might  also  have  ratified. 

Having  taken  this  for  granted,  we  may  hnd  publicists 
of  every  creed  giving  this,  as  history  agreeing  with  this 
assumption — that,  when  the  new  government  was 
inaugurated,  as  of  March  4,  1789,  two  States,  North 
Carolina  and  Rhode  Island,  which  had  not  then  ratified, 
were  each  a  severally  distinct  nationality  or  sovereign 
State,  and  continued  to  be  such  until  after  their  respect- 
ive ratifications,  a  year  or  more  later. 

The  great  majority  of  those  who  take  this  view  are 
those  who  agree  with  yourself  and  friends,  that,  before 
ratifying,  each  of  the  thirteen  had  been  a  severally  inde- 
pendent sovereignty.  Yet,  so  completely  has  this  con- 
ception of  the  situation  of  these  two  non-ratifying 
States  prevailed,  that  it  is  embraced  even  by  some  who 
deny  the  several  sovereignty  of  the  thirteen  before  the 
Constitution  was  offered  for  ratification.  AVe  find 
Judge  Cooley,  who  takes  this  view  of  the  ])ievious 
political  existence  of  the  whole  number,  saying   tliat 


67 

these  two  States  were,  at  the  time  when  the  new  gov- 
ernment was  inaugurated,  the  only  States  wliich  ever 
exercised  complete  sovereignty.  That  is,  these  two 
States  are  regarded  by  hiin  as  then  first  becoming 
sovereignly  independent,  by  the  ratifications  of  the 
conventions  in  the  eleven  other  States,  because  these 
were  "  sufficient  for  the  establishment  of  this  Constitu- 
tion between  the  States  so  ratifying  the  same."'' 

All  these,  then,  however  widely  opposed  to  yourself 
and  friends  on  the  general  question  of  State-sovereignty 
after  the  adoption  of  the  Constitution,  are  found  agree- 
ing with  you  on  this  point,  as  matter  of  history.  This 
being  so,  all,  virtually,  ask  us  to  suppose  that  those, 
whoever  they  were,  who  framed  the  document  begin- 
ning— "We,  the  people  of  the  United  States,''  and  those 
who  offered  it  to  the  State  conventions  for  ratification, 
had  in  view  these,  as  possible  results  of  their  scheme 
for  "a  more  perfect  union " — viz. : 

That  the  action  of  any  nine,  they  could  not  foresee 
which,  might  produce  a  complete  disruption  of  what- 
ever union  or  nationality  had  existed  up  to  that  time, 
and  that,  possibly,  four  singly  sovereign  States,  they 
could  not  foresee  which,  might  thereupon  exist,  possibly 
such  as  should  be  a  central  group  separating  the  rati- 
fying States  into  two  groups.  North  and  South,  or  per- 
haps lying  interspersed  geographically  among  the  nine 
ratifying  States  ;  while  these  nine,  however  situated, 
should  form  a  distinct  political  power,  manifested  by  the 
new  organ  of  government  which  was  to  exist  as  conse- 
quence of  their  ratification  of  the  Constitution. 

To  borrow  the  language  of  Mr.  Bryce  :  ' '  It  [the  Con- 
stitution] was  to  come  into  effect  as  soon  as  nine  States 
had  ratified,  the  effect  of  which  would  have  been,  incase 

^  Cooley's  Principles  of  Constitutional  Law,  p.  17. 


68 

the  remaining  States,  or  any  of  them,  had  rejected  it,  to 
leave  such  States  standing  alone  in  the  world,  since 
the  old  confederation  was,  of  course,  superseded  and 
annihilated.'" 

The  importance,  to  us  of  the  present  day,  of  examin- 
ing the  correctness  of  this  conception  of  the  separate 
sovereign  existence  of  the  two  non-ratifying  States  at 
that  time,  is  to  be  found  in  its  bearing  on  the  principal, 
and,  indeed,  the  only  argument  now  offered  for  attrib- 
uting the  authority  of  the  Constitution  to  the  one  peo- 
ple of  all  the  thirteen  States,  regarded  as  one  country, 
and  irrespectively  of  the  j^rior  existence  of  any  State 
or  States. 

This  argument  is  drawn,  solely,  from  the  words, 
"We,  the  people  of  the  United  States,"  etc.,  in  the 
preamble.  But,  if  any  non-ratifying  State  was  to  be 
thus  excluded,  on  ratification  by  nine  or  more,  these 
words  must  be  understood  as  equivalent  in  the  minds 
of  the  framers,  to  saying  this— We,  the  people  of  such 
of  the  thirteen  States  to  the  number  of  nine  or  more,  as 
shall  ratify  this  Constitution,  being  exclusively  the  peo- 
ple of  the  United  States,  do  ordain  and  establish  this 
Constitution  for  such  States  exclusively,  as  the  United 
States  of  America. 

Such  amplification  of  the  terms  of  the  preamble 
would  adapt  itself  to  those  known  circumstances  of  its 
composition,  to  which  the  sux)porters  of  State-sover- 
eignty justly  refer  in  reply  to  inferences  from  the  term, 
"  AVe,the  people,"  as  repudiating  the  political  authority 
of  the  States  in  the  adoption  of  the  Constitution.  Tliese 
are  that,  as  matter  of  fact,  those  words  were  substi- 
tuted for  the  names  of  the  thirteen  several  States  as 
they  had   stood   in   the  first   draft  of   the  instrument, 

'  Am.  Commonwealth,  Vol.  I,  p.  23. 


69 

simply  because,  when  the  prospective  inauguration  of 
the  new  government  was  anticipated  as  the  effect  of 
ratification  by  nine  States,  it  was  impossible  to  know 
which  of  the  thirteen  these  should  be.' 

For  any  who  hold  with  you  that  the  name, 
"The  United  States,"  has  never  designated  anything 
more  than  a  league  of  sovereigns  acting,  for  the  time 
being,  by  a  federal  agent,  the  conception  of  such  an 
exclusion  of  a  State,  as  possibly  following  a  ratifica- 
tion by  nine  or  by  any  number  of  the  States,  less  than 
all,  would  seem  consistent  enough.  Each  State  con- 
tinuing severally  or  individually  sovereign,  nine,  or 
any  number  less  than  thirteen,  leaving  the  rest  to  their 
own  devices,  could  always  agree  on  a  common  func- 
tionary government,  which  might  or  might  not  be 
described  in  words  like  those  of  this  Constitution. 
Such  supposable  illustrations  of  the  theory  might  have 
been  regarded  as  inconvenient,  even  at  that  time.  But 
applications  still  more  awkward  for  political  utility  are 
supposable  on  the  same  theory,  now  ;  when  the  several 
sovereigns  may  number  thirty-nine  or  more  instead  of 
thirteen. 

All  this  is  plain  to  simplicity  itself. 

But  what  the  unlearned  public  would  like  to  know 
is,  how  those  who  take  the  opposite  view  of  the 
nature  of  the  new  government,  that  is,  those  who 
attribute  the  Constitution  and  the  authority  of  the 
Federal  Government  to  some  possessor  of  supreme 
power,  other  than  the  States  as  political  persons, 
whether  severally  or  unitedly  sovereign,  would  explain 
such  possibilities  as  are  indicated  by  admitting  the 
actually  several  independent  sovereignty  of  these  two 
States  at  that  time  ? 

»  Bancroft,  VI,  SoT. 


70 

How  could  such  an  exclusion  of  one  or  more  States 
from  the  pre-existing  union,  or  their  temporary  exist- 
ence as  severally  independent  nations,  be  reconciled 
with  this  admission  ? 

As  being  one,  and,  perhaps,  the  first,  of  those  who, 
while  affirming  the  possession  of  sovereignty  by  the 
newly  organized  Federal  Government,  had  taken  this 
view  of  the  position  of  these  two  States,  and  had  also 
offered  an  explanation,  I  would  cite  President  John 
Quincy  Adams. 

This  statesman,  in  an  Address^  delivered  April  80, 
1839/  expounded  the  origin  and  legal  effect  of  the  Con- 
stitution of  government  of  1789,  by  describing  it  as 
"the  work"  of  one  people. 

But  he  identified  this  people  by  limiting  its  numeri- 
cal extent  to  a  teiTitory  ascertained  from  the  several 
dominion  of  the  eleven  ratifying  States.  That  is,  he 
regarded  those  two  States,  North  Carolina  and  Rhode 
Island,  or,  rather,  their  populations,  as  not  being  con- 
stituents in  the  personality  of  the  icorking^  or  energiz- 
ing people  ;  because,  when  the  new  government  was 
inaugurated,  they  had  not  ratified.  So,  he  argued,  by 
maintaining  that  several  sovereign  existence,  which 
each  of  the  thirteen  had,  in  his  opinion,  possessed  up 
to  that  moment,  these  two  States  became  aliens  to  the 
new  United  States,  which  had  come  into  existence  by 
what  he  considered  the  revolutionary  action  of  the 
people  of  the  eleven  ratifying  States,  and  of  these 
States  only. 

I  will  venture  to  cite  for  your  attention  some  pas- 
sages, at  what  may  seem  a  disproportionate  length, 
from  this   Address;   partly,   because  copies  are  not 

'  77m'  Jnhilee  of  the  Coiistitntioit.  An  Address  delivered  before  the 
New  York  Historical  Society. 


71 

likely  to  be  found  now,  except  in  a  few  public  libraries. 
But  another  reason  I  have  for  doing  so  is,  that  it  is,  to 
a  remarkable  degree,  illustrative  of  the  curious  assem- 
blage of  contradictory  ideas  respecting  sovereignty 
and  government,  which  have  had  currency  at  the  North, 
during  the  century  past,  in  our  political  discussions. 

In  summing  up  his  points,  Mr.  Adams  stated — "That 
it  was  the  work  of  one  people  of  the  United  States." 

But  if  we  would  know  in  what  sense  Mr.  Adams  used 
the  term  one  people,  there  are  several  passages  relat- 
ing to  those  two  States,  which  may  elucidate  it. 

As  these  : 

"The  people  of  Rhode  Island  had  taken  no  part  in 
the  formation  of  the  Constitution  and  refused  their 
sanction  to  it.  They  had  virtually  seceded  from  the 
Union.  North  Carolina  had  been  represented  in  the 
Convention  at  Philadelphia,  but  her  people  had  re- 
fused to  ratify  their  constitutional  act." 

Mr.  Adams  then  alludes,  without  specification,  to 
"recent  events  in  our  history,"^  as  originating  questions 
for  the  "  rising  generation."     After  which,  he  adds  : 

"The  question  whether  any  one  State  of  the  Union 
had  the  right  to  secede  from  the  confederacy  at  her 
pleasure  was  then  practically  solved." 

It  might  be  thought  that  Mr.  Adams  meant  only 
"the  confederacy"  under  the  old  Articles.  Yet  he 
proceeds  to  say  immediately — "The  question  of  the 
right  of  the  people  of  any  State,  to  nullify  within  her 
borders  any  legislative  act  of  the  general  government, 
was  involved  in  that  of  the  right  of  secession,  without, 
however,  that  most  obnoxious  feature  of  the  modern 
doctrine  of  nullification  and  secession,  the  violation  of 
the  plighted  faith  of  the  nullifying  or  seceding  State." 

Apparently,    Mr.    Adams   meant   that   such  "  viola- 

^  i.  e.,  recent  events  in  1839. 


72 

tion,"  etc.^  could  not  occur  in  the  case  of  the  States 
of  the  old  confederacy  under  the  Articles,  as  it  might 
in  the  case  of  States  which  had  ratified  the  new  Con- 
stitution. 

But  you  and  I  are  not  now  looking  for  authorities, 
either  for  or  against  the  right  of  secession.  AVe  are 
trying  to  identify  the  people  to  whom,  according  to  Mr. 
Adams,  "the  work "  is  to  be  attributed. 

He  says  of  Rhode  Island  : 

"She  had  refused  to  join  in  the  united  effort  to 
revivify  the  suspended  animation  of  the  confederacy, 
and  she  still  defied  the  warning  of  her  sister  States, 
that,  if  she  persevered  in  this  exercise  of  her  sovereignty 
and  independence,  they  would  leave  her  alone  in  her 
glory,  and  take  up  their  march  in  united  column  with- 
out her.  North  Carolina,  after  joining  them  in  the 
attempt  to  draw  the  bonds  of  union  closer  together  by 
a  new  compact  [/.  e. — being  represented  in  the  con- 
vention], still  refused  to  ratify  it,  though  recommended 
by  the  signature  of  her  own  delegates,  and  under  a 
similar  admonition.  Rhode  Island  and  North  Caro- 
lina still  held  back.  The  Union  and  Washington 
marched  without  them.  Their  right  to  secede  was  not 
contested.  No  unfriendly  step  to  injure  was  taken  ; 
no  irritating  measure  to  provoke  them  was  proposed. 
The  door  was  left  open  for  them  to  return  whenever 
the  proud  and  wayward  spirit  of  State-sovereignty, 
should  give  way  to  the  attractions  of  clearer  self- 
interest  and  kindred  sympathies.  In  the  first  acts  of 
Congress  they  were  treated  as  foreigners,  but  with 
reservations  to  them  of  the  power  to  resume,  etc^'^ 

Mr.  Adams  proceeds  as  if  feeling  bound  to  excuse 
the  action  of  the  people  of  the  eleven  States. 

"The  justification  of  the  people  of  the  eleven  States 

^   The  Jubilee,  etc.,   p.  64. 


78 

which  had  adopted  the  Constitution  of  the  United 
States,  and  of  that  provision  of  the  Constitution  itself 
which  had  prescribed  that  the  ratification  of  nine 
States  should  suffice  to  absolve  them  from  the  bonds  of 
the  old  confederation  and  to  establish  the  new  govern- 
ment as  between  themselves,  was  found  in  the  princi- 
ples of  the  Declaration  of  Independence. ' ' ' 

He  proceeds  to  put  the  adoption  of  the  Constitution 
on  the  same  plane  with  the  revolution  of  the  colonies. 
While  he  states  that  the  people  of  these  ratifying 
States,  by  "the  concurrence  of  majorities  in  nine 
out  of  the  thirteen,"  "had  neither  prepared  nor  pro- 
posed any  measure  of  compulsion  to  draw  the  people 
of  any  of  the  possibly  dissenting  States  into  the  new 
partnership  against  their  will,"  he  adds:  "They 
passed  upon  the  old  confederation  the  same  sentence 
which  they  had  pronounced  in  dissolving  their  connec- 
tion with  the  British  nation,  and  they  pledged  their 
faith  to  each  other  anew,  in  a  far  closer  and  more  inti- 
mate relation." 

Thus  Mr.  Adams  states  the  adoption  of  the  Constitu- 
tion as  resulting  from  the  revolutionary  act  of  the 
people  ;  but  the  people  of  eleven  States  only. 

Revolutionary — as  against  whom  ?  Against  what  sov- 
ereign ?  We  are  left  in  doubt. 

He  goes  on  to  say  : 

"It  is  admitted,  it  was  admitted  then,  that  the  peo- 
ple of  Rhode  Island  and  North  Carolina  were  free  to 
reject  the  new  Constitution  ;  but  not  that  they  could 
justly  claim  the  continuance  of  the  old  confederation. 
The  law  of  political  necessity,  expounded  by  the  judg- 
ment of  the  sovereign  constituent  people,  responsible 
only  to  God,  had  abolished  that.  The  people  of  Rliode 
Island  and  of  North  Carolina  might  dissent  from  the 

*  The  Juhilee,  etc.,  p.  65. 


74 

more  perfect  union,  but   they  must  acquiesce  in  the 
necessity  of  the  separation."'  ^ 

Some  later  students  of  our  political  history,  whose 
position  as  such  gives  weight  to  their  opinions,  have 
recently-  offered  a  somewhat  similar  explanation  of 
the  adoption  of  the  Constitution,  as  the  revolution- 
ary act  of  a  people  or  nation.  But  this  people,  the 
revolutionary  agent,  is  not  recognized  in  their  scheme 
by  any  such  discrimination  between  the  ratifying 
and  the  non-ratifying  States,  or  such  regard  for  geo- 
graphical limitations.  The  people,  in  their  concep- 
tion, acquired  its  entity  and  geographical  exten- 
sion by  some  principles  of  science,  so  as  to  include 
the  occupants  of  the  whole  dominion  known  be- 
fore that  time  as  the  thirteen  United  States.  Conse- 
quently, by  such  a  theory,  the  two  States  not  ratifying 
with  the  others,  though  all  are  conceived  as  having  been 
severally  sovereign  up  to  that  moment,  ceased,  as  did 
equally  the  ratifying  eleven,  to  be  such,  and  by  the 
will  and  force  of  this  people,  and  against  their  own 
wills,  as  States,  or  without  reference  to  any  will  of 
States,  became — as  territory  and  population — subordi- 
nate members  of  the  new^  Union,  whatever  that  may 
have  been. 

I  do  not  propose  to  cite  from  this  very  recent  author- 
ity to  the  extent  equal  to  that  I  have  permitted  myself 
to  do  in  the  case  of  Mr.  Adams.  The  Political  Science 
Quarterly  is,  or  ought  to  be,  at  your  hand.  A  few  sen- 
tences may  serve  as  a  present  reminder.     As  these  : 

"  So  far  as  the  paper  Constitution  [of  the  confedera- 
tion] was  concerned,  this  system  of  sovereign  States  in 

'  21ie  Jubilee,  etc.,  p.  66. 

*  Political  Science  Quarterly,  Vol.  I.  Article,  The  American  Common- 
wealth. 


75 

league  was  made  immutable.  In  fact,  it  lasted  Just 
eight  years,  and  was  then  overthrown  by  revolution. 
"The  States  had  usurped  the  powers  of  the 
nation.  They  had  planted  themselves  upon  ground 
false  to  philosophy,  false  to  history,  and  false  to 
physical  and  ethnical  relations.'  These  powers  must 
be  wi'enched  from  them  and  they  forced  back 
into  their  jDroper  subordination.  But  how  could  it 
be  done  ?  .  .  .  Two  far-seeing  spirits  divined 
the  escape  from  the  unbearable  situation.  .  .  ,  the 
States  have  usurped  the  sovereignty  of  the  people  of 
the  nation^  and  the  peoijle  must  reassert  their  sover- 
eign power.  But  this  was  revolution — ^revolution  against 
usurpation.  .  .  .  The  best  talent  in  the  nation  was 
brought  together  in  secret  convention  and  persuaded 
to  frame  a  Constitution  withdrawing  from  the  States 
the  greater  part  of  the  usurped  powers,  and  to  make 
an  appeal  to  the  people  of  the  nation  to  establish  it. 
The  people  answered  with  sufficient  unanimity.  Yea, 
and  the  nation  reasserted  its  sovereignty."  - 

The  same  writer,  in  the  same  quarterly,  states  it  thus  : 
"  As  tersely  as  I  can  express  it,  what  happened  was 
this :  The  natural  leaders  in  the  nation  invoked  a 
force  unknown  to  the  Constitution  [meaning  probably 
that  of  the  confederacy]  to  assert  itself  as  the  sover- 
eign power,  and  at  the  same  time  to  declare  the  form  of 
organization  under  which  it  would  act,  and  the  majority 
sufficient  to  give  validity  to  the  act ;  and  the  regularly 
constituted  powers  felt  compelled  to  see  this  new  self- 
constituted  sovereignty  occupy  the  ground.  They  actu- 
ally put  the  new  system  into  operation  while  two  of 
the  States  were  still  holding  out  against  its  adoption, 

. '  It  may  be   thought  tliat  this  new  school  of  writers  have  discovered 
what  DeTocqueville  said  was  the  desideratum — "  qu'ilfdut  une  science  poli- 
tique noiivelle  a  un  monde  tout  nouveau." — Democ.  en  Am.,  Introd.,  p.  11. 
«  Pol.  Sc.  Quarterly,  I,  p.  21. 


76 

and  assumed  such  an  attitude  towards  these  as  to  make 
them  quickly  feel  that  further  resistance  would  be  dis- 
astrous." ^ 

The  writer  says  in  the  same  paper : 

"  AVe  should  accept  fairly  and  fully  the  proposition 
that  the  Constitution  of  1787  rested  originally  upon  a 
revolutionary  basis,  and  justify  the  fact  upon  the  prin- 
ciple of  public  necessity." 

It  is  not  unusual  to  find  some  of  the  writers  of  this 
school,  when  pressed  to  show  from  history  the  action 
of  the  people  or  nation,  whose  authority  they  have  in- 
voked for  the  institution  of  our  government,  denying 
that  they  mean  to  affirm  "that  the  people  as  a  mass," 
or  "the  geographical  people,"  or  a  collection  of  men, 
women  and  children,  have,  as  such,  ever  exercised  this 
or  any  other  political  power.  They  admit  that  this 
would  be  nonsense — i^utting  notions  for  things.  They 
say  that,  in  demonstrating  the  falsity  of  any  assertion 
of  that  sort,  you,  or  I,  or  anybody  else  would  be  "light- 
ing a  windmill." 

Nevertheless,  all  their  argument  as  against  the  doc- 
trine that  power  has  always  been  held  by  the  States — 
in  some  sort  of  union — so  far  as  it  can  be  called  argu- 
ment, rests  on  the  assumption  that  this  has  not  been 
the  historical  fact. 

They  will  say  that  the  people  whom  they  have  in 
mind  are  "the  organized  people"  ;  that  is,  such  in- 
dividuals in  the  community  as  have  political  capacity 
under  law — such  as  the  legal  right  to  vote  for  a  certain 
number  of  persons  to  fill  offices  recognized  by  law; 
such  law  as  may  have  been  established  by  some  then 
subsisting  sovereign. 

They  are  not  such  fools,  they  say,  as  to  suppose  that 
every  crowd  of  bipeds,  having  speech  and  intellect, 

»  Pol.  Sc.  Quarterly,  I,  p.  619. 


77 

constitute  suoh  a  people  as  they  would  recognize  as 
holding  political  right  above  laio. 

Now  there  is  no  question  but  that,  in  ordinary  con- 
versation, when  we  talk  of  "the  people,"  ''the  will  of 
the  people,"  " the  feeling,  expectations,  etc.^  of  'the 
people,'  "  as  bearing  on  political  ends,  we  do  not  take 
the  word  in  this  sense. 

But  when  we  begin  to  reason  about  revolution — the 
upsetting  of  the  existing  sovereign  power-holder,  to 
whose  will  and  force  the  pre-existing  law  is  referred — 
it  is  a  contradiction  in  conception  to  attribute  the  right 
of  revolution  to  a  people  limited  in  this  way.  It  is 
equivalent  to  calling  revolution  a  legal  right — the  ex- 
ercise of  a  franchise. 

The  right  of  revolution,  if  we  choose  to  call  it  a  right, 
like  all  the  so-called  natural  rights,  is  attributable  to 
individual  human  beings,  without  regard  to  legal, 
social  or  physical  distinctions.  In  exercising  such  a 
right  they  must  combine  without  reference  to  such  dis- 
tinctions. If  they  combine  only  as  members  of  an  ex- 
isting political  corporation,  or  as  a  majority  of  such 
members,  it  is  the  corporation  which  claims  right  by 
will  and  force  above  law,  and,  as  a  majority  or  minority 
— almost  universally  it  is  as  a  minority  of  the  com- 
munity— their  right  as  corporate  body  may  be  estab- 
lished as  political  capacity. 

This  was  shown  in  the  argument  for  attributing  the 
revolution  of  1776  to  the  right  and  action  of  the  thir- 
teen colonies,  in  distinction  from  the  right  and  action 
of  the  people  either  as  voters  or  as  merely  inhabitants. 

A  revolution  such  as  these  publicists  would  have  us 
recognize,  as  the  historical  fact,  from  principles  of 
political  science — a  revolution  causing  the  adoption  of 
the  Constitution,  in  distinction  from  any  change  of 
administration  resulting  from  that  adoption,    would 


78 

have  its  parallel  in  that  change  which  took  place  in 
Switzerland  in  1798.  in  the  name  of  such  principles, 
though  it  was  sustained  only,  and  for  a  brief  period 
only,  by  the  alien  force  of  the  French  Revolutionists, 
during  the  despotic  rule  of  the  Directory.  In  that  case 
' '  it  was  a  complete  revolution  in  both  the  form  and  the 
theory  of  the  government.  Whatever  had  existed 
hitherto  was  the  product  of  a  gro\\i:h  along  historical 
lines,  in  which  traditional  rights  had  been  preserved, 
and  the  sovereignty  of  the  several  cantons  had  remained 
inviolate.  Under  the  Constitution  of  1798,  established 
through  the  interference  of  France,  the  historical 
ground  was  abandoned,  and  a  basis  was  sought  in  the 
doctrine  of  natural  rights.  The  cantons  were  deprived 
of  their  independence,  and  there  was  set  up  a  '  repre- 
sentative democracy  resting  on  the  abstract  ideas  of 
liberty,  equality  and  popular  sovereignty.'  "* 

These  American  publicists,  who  thus  present  the  two 
non-ratifying  States  as  having  lost  their  several  sov- 
ereignty through  the  ratification  of  the  Constitution  by 
the  other  States,  are,  as  was  also  Mr.  Adams,  in  accord 
with  the  majority  of  our  writers  of  every  school  in 
regarding  the  original  States  as  having  been  severally 
sovereign,  as  matter  of  fact. 

But  they,  against  the  common  opinion,  affirm,  as 
does  also  Mr.  Adams,  ^  this  sovereignty  of  the  States  to 
have  been  usurpation,  as  against  a  people  or  nation 

^  B.  Moses.  Federal  Government  of  Switzerland,  p.  29;  citing 
German  authorities. 

*  The  JnJdlee,  etc.,  p.  20:  "This  invohuitary  and  unconscious  ufturpittion 
upon  the  rights  of  the  people  of  the  United  States."  p.  39.  "A  confederacy 
had  been  substituted  in  the  place  of  a  government, and  State-sovereignty  had 
usurped  the  constituent  sovereignty  of  the  people."  To  the  same  effect 
Prof.  Hudson  in  New  Englander  and  Yale  Review,  Jan.,  1888,  p.  42. 
Woolsey,  Pol.  Science,  II,  249.  Cooley,  Const.  Limitations,  8.  Dr. 
Mcllvaine,  Princeton,  in  1860. 


79 

which  had  actually  become  sovereign  when  independ- 
ence was  established  as  against  Great  Britain. 

They,  further,  agree  with  Mr.  Adams  in  describing 
this  revolution,  resulting,  as  they  would  have  it,  in  the 
adoption  of  the  Constitution,  as  a  recovery  of  sover- 
eignty by  an  originally  sovereign  people. 

These  later  discoverers  of  a  revolution  in  the  adop- 
tion of  the  Constitution,  identify  their  revolutionary 
agent — the  people  at  this  crisis — with  their  originally 
sovereign  people.  But  as  this  former  sovereign  people 
is  supposed  by  them,  and  also  by  Mr.  Adams,  to  have 
included  the  several  populations  of  all  the  thirteen 
colonies,  the  recovery  of  sovereignty  by  the  same 
people  should  involve  its  loss  by  every  one  of  the 
thirteen  usurpers.  Their  view,  therefore,  is  rather  more 
logical  in  form  than  Mr.  Adams' ,  as  well  as  more  in 
harmony  with  the  common  conception  of  popular 
sovereignty. 

By  any  discovery  of  will  and  force  existing  inde- 
pendently of  all  the  States,  one  would  easily  explain 
the  genesis  of  the  present  written  Constitution  as  law 
acting  on  those  States. 

It  might  not  be  very  unreasonable  to  have  expected 
Mr.  Adams,  or  some  of  these  later  discoverers  of  a  re- 
volution at  that  time,  to  show  us  how  they  could  trace 
the  action  of  such  a  people  in  what  was,  apparently, 
the  action  of  the  States.  That  they  represent  such  a 
political  change  as,  in  their  judgment,  rightful,  as 
being  the  restoration  of  supreme  power  to  some  who 
had  been  unjustly  deprived  of  it,  in  its  usurpation  by 
these  States,  is  entirely  immaterial  to  the  point — whether 
this  revolution  was,  or  was  not,  a  fact. 

As  the  matter  stands  at  present,  they  are  no  nearer 
proving  the  sovereignty  of  this  people,  as  against  the 
States,  than  have  been  those  who  had  all  along  asserted 
it  without  supposing  such  a  revolution. 


VIII. 

Either  of  these  expositions  of  a  revolutionary  change 
in  the  j)olitical  character  of  the  original  States  would 
be  distasteful  enough  to  your  States-rights  school.  But 
each  would  be  equally  so,  and  quite  as  logically,  to  any 
who,  agreeing  in  the  general  opinion  as  to  the  original 
sovereignty  of  each  of  the  thirteen,  regard  the  new 
government  as  having  become  the  possessor  of  sover- 
eignty, or  of  some  certain  sovereign  powers,  by  a  volun- 
tary transfer  of  some  sort,  from  each  one  of  the  States 
in  their  several  ratifications  of  the  Constitution. 

It  may  seem  a  singular  thing  that,  in  our  case,  there 
should  have  been  any  difficulty  in  distinguishing 
between  an  agency  or  functionary  government,  under 
law,  and  a  possessor  of  sovereign  and  independent 
powers  by  will  and  force  above  law.  Yet  one  question 
for  us  as  a  people,  all  along  from  1789,  seems  to  have 
been  whether  the  distinction  has  been  discernible  in 
our  political  existence  since  that  date  ;  as,  by  general 
admission,  it  had  been  before,  during  the  continuance 
of  the  Continental  Congress  and  the  Congress  of  the 
Confederation. 

This  question  is  distinguishable  from  that  of  the 
genesis  of  the  government ;  though,  of  course,  inti- 
mately connected  with  it. 

One  essential  characteristic  of  all  sovereign  power- 


81 

holders,  is  that  they  have  the  faculty  of  self-continu- 
ance ;  that  is,  that,  so  far  as  they  continue  at  all,  as 
possessors  of  power,  it  is  by  their  own  several  will  and 
force  ;  independently  of  the  will  and  force  of  any 
external  person. 

Gouverneur  Morris,  writing  Oct.  21,  1811,^  in  a  letter 
to  R.  R.  Livingston  (relating  to  litigation  as  to  naviga- 
tion of  the  Hudson),  said  :  ''Immediately  on  the  Dec- 
laration of  Independence,  those  royalties  or  sovereign 
rights,  which  from  their  nature  belong  to  the  nation 
in  its  collective  capacity  vested,  of  necessity,  in  the 
national  government." 

Besides  begging  the  question,  by  assuming  the 
political  existence  of  a  "nation  in  its  collective  capac- 
ity," as  against  the  existing  thirteen  colonies  or 
States,  and,  next,  vesting  in  a  "government"  the 
rights  belonging  to  this  nation,  this  assumes  the  possi- 
bility of  the  division  of  sovereignty.  But,  aside  from 
this,  the  objection  to  this  statement  is,  that,  whatever 
could  be  done  by  the  Continental  Congress,  it  could 
not  hold  a  particle  of  sovereign  right,  because  it  did 
not  exist,  as  government,  by  its  own  will  and  force.  It 
continued  only  as  an  assembly  of  delegates  sent  from 
time  to  time,  without  even  regular  elections,  by  the 
several  colonial  Congresses,  Conventions  or  State  govern- 
ments, or  by  the  electors  of  the  several  colonies  or 
States,  which  had  chosen  these  governments.  Conse- 
quently, this  Congress  could  only  have  represented 
some  political  person  or  persons  holding,  by  their  own 
will  and  force,  "the  royalties  or  sovereign  rights  "  re- 
ferred to. 

Neither  did  its  successor,  under  the  Articles  of  Con- 
federation, possess  any  power  of  self-continuance.  It 
existed  only  as  the    State  governments    might    send 

1  Sparks'  Life  of  G.  Morris,  III,  272. 


82 

delegates,  voting  in  a  representative  capacity  for  their 
States. 

AjDart  from  the  question,  whether  sovereign  power 
can  be  divided,  can  it  be  shown  that  the  executive, 
legislative  and  judicial  officers  acting  under  the  Con- 
stitution for  purposes  of  general  government,  differ  in 
this  respect  from  the  Continental  Congress,  and  the 
Congress  under  the  Articles  of  Confederation  ? 

Mr.  Bryce  states  :^ 

' '  The  acceptance  of  the  Constitution  made  the 
American  people  a  nation.  It  turned  what  had 
been  a  league  of  States  into  a  Federal  State,  by 
giving  it  a  national  government  with  direct  authority 
over  all  citizens." 

In  the  view  which  I  wish  to  present,  the  "Federal 
State"  was  no  more  an  existent  fact  after,  than  before 
that  adoption.  In  fact,  it,  or,  rather,  the  Union-state, 
as  something  quite  different  from  a  league  of  States, 
or  a  true  federation,  had  continued  from  the  earliest 
existence  of  the  "United  States." 

AVhether,  as  such  Union-state,  it  continued  to  exist 
after  the  adoption  of  the  written  Constitution,  depends 
on  the  question  whether  the  "direct  authority  over  all 
citizens,"  which  the  new  "national  government"  was 
to  exercise,  was  authority  vested  in  it  as  instrument 
for  such  pre-existing  Union-state,  or  was  acquired,  in 
that  transaction,  by  the  persons  who  might  be  elected 
to  carry  on  such  government,  as  of  political  right  above 
law,  or  as  sovereign. 

If  the  latter  was  the  case,  then,  according  to  my  idea 
of  the  meaning  of  terms,  the  Union-state  must  have 
disappeared ;  being  replaced  by  something  to  which 
any  term  implying  federation  would  be  a  mis- 
nomer. 

^  American  Conim,,  Vol.  I,  p.  29. 


83 

In  a  letter  to  the  Governors  of  the  States  in  1783, 
Washington  wrote — "There  are  four  things  which  I 
humbly  conceive  are  essential  to  the  well-being — I  may- 
even  venture  to  say  to  the  existence — of  the  United 
States  as  an  independent  power :  First,  an  indissoluble 
union  of  the  States  under  one  Federal  head/' 

A  leading  American  writer  on  the  History  of  the 
Constitution  (Curtis,  Vol.  I,  p.  174,  ed.  1887)  re- 
marks— "No  federative  government  can  be  of  great 
permanent  value  which  is  not  so  constructed  that  it 
may  stand  in  some  measure  as  the  common  sovereign 
of  its  members,  able  to  j)rotect  them  against  internal 
disorders  as  well  as  against  external  assaults, ' '  Whether 
this  proposition  is  intended  as  a  proof  that  such  is  the 
relation  held  by  the  government  here  to  the  States — the 
author's  readers  must  judge.  The  proposition  may  be 
true  in  the  highest  degree  ;  but  it  is  only  an  opinion; 
a  scientific  opinion,  so  to  speak,  couched  in  general 
terms.  It  could  no  more  be  evidence  of  existing  polit- 
ical fact,  now,  after  the  adoption  of  the  Constitution, 
than  was  the  opinion  of  the  Father  of  his  Country, 
in  reference  to  the  future  of  the  States,  before  that 
event. 

If  such  ojjinions  are  open  to  any  exception,  it  is  in 
respect  to  the  terms  used.  A  federative  government 
must  be  one  representing  sovereignty,  held  in  some 
form  by  the  members  of  the  federation.  No  government 
can  be  q^aW^^  feeler atme  which  occupies  the  relation  of 
sovereign  as  to  its  "members,"  or  in  which  the  "  union 
of  the  States"  is  "under  one  federal  head,"  regarded 
in  that  relation. 

The  question  is  not  whether  there  might  not  be 
some  very  excellent  forms  of  government  answering 
to  this  description.  But  they  should  bear  some  other 
name  than  federative.  Whether  there  is  actually  in 
existence,    either  here  or  elsewhere,    any  government 


84 

answering  to  this  description  is  a  different  matter — a 
question  of  fact,  as  distinguished  from  one  of  political 
science  or  philosophy. 

Every  actual  possessor  of  sovereign  jDower  assumes 
the  indefinite  continuation  of  the  possession  ;  so  far  as 
he  may  assume  that  his  own  will  and  force  can  be 
sufficient  to  maintain  its  possession.  This  is  true  of 
the  sovereign  in  our  country,  whoever  he,  she  or  they 
may  be.  The  history  of  mankind  tells  us  that  the 
sovereign  always  intends  to  continue  sovereign.  The 
Supreme  Court,  in  cases  during  the  war,  often  argued 
that  the  government  organized  under  the  Constitution 
must,  as  possessor  of  sovereign  powers,  be  justified  in 
using  all  means  for  sustaining  its  possession  within 
the  States  resisting  their  exercise.  The  court  expressed 
the  same  idea  in  referring  to  the  intention  of  the 
founders  that  this  government  should  endure  indefi- 
nitely, permanently,  without  limitation  as  to  time.  As 
by  Chase,  C.  J.,  in  Texas  v.  White,  7  Wallace  724. 
This  reference  to  an  intention  was  unfortunate  for  the 
position  taken  for  the  government,  as  holding  sovereign 
rights  ;  because  it  implied  the  existence  of  somebody 
in  being,  distinct  from  such  government,  whose  will 
and  force  was  the  cause  of  its  existence.  The  position 
was  not  bettered  by  the  constant  reference  to  the  Con- 
stitution as  law.  For  this  instrument  itself  indicates 
that  this  government  could  continue  to  exist  only  by 
the  selection  from  time  to  time  of  Presidents,  Congresses 
and  Judiciaries,  through  the  voluntary  action  of  voters 
deriving  their  franchise  from  the  will  and  force  of  some 
political  persons  entirely  independent,  in  this  respect, 
of  these  officials. 

The  circumstance  that  this  government  had  jiuthor- 
ity  to  act  directly  on  persons  and  ])roperty,  while  its 
predecessors  acted  on  these  indirectly,  through  the 


85 

co-operation  of  each  several  State,  is  no  criterion  of  the 
quality  of  the  power  exercised  ;  as  either  that  of  a  per- 
son holding  sovereignty  by  will  and  force  above  law, 
or  that  of  an  agent  for  such  a  person  and  as  a  function- 
ary government  under  law. 

AVhatever,  then,  may  have  been  the  intention  of  those 
whose  agency  in  promoting  the  adoj)tion  of  the  Consti- 
tution is  discernible — whether  intelligent  and  patriotic 
fathers  and  founders,  or  blind  agents  of  destiny — they 
could  not  have  witnessed  a  transfer  of  sovereignty, 
either  in  whole  or  in  part,  when  they  worked  for  the 
establishment  of  this  government.  For  there  was  no 
body  in  being  and  capable  of  continuing  such  being  to 
whom  sovereignty  could  be  transferred.  Essentially 
therefore,  this  government  was  and  has  been  in  the 
same  position  towards  some  exterior  possessor  of  sov- 
ereign power  as  had  been  its  predecessors  before  1789. 

There  are  many,  no  doubt,  who  would  regard  this 
distinction  as  of  no  practical  importance,  because,  as 
they  would  say,  this  elective  government,  or  body  of 
officials,  if  it  cannot  hold  power  itself,  as  the  sovereign, 
yet  represents  some  one  who  does,  not  only  as  against 
this  government,  but  also  as  against  the  several 
States. 

They  would  not  recognize  even  the  aggregate  of  the 
electors  or  voters  who  hold  the  franchise  under  the 
special  Constitutions  of  the  several  States,  as  being  this 
sovereign.  For  this  would  be  to  recognize  the  exercise 
of  all  ultimate  force  by  the  States  ;  since  this  force  is 
especially  manifested  by  them  in  their  constant  action, 
as  political  jDersons,  for  determining  the  possession  of 
the  elective  franchise.^ 

'  It  is  probable  that  this  fundamental  fact  has  always  seemed  anoma- 
lous to  foreign  critics— that  the  elective  franchise  is  determined  under  the 
constitutional  law  of  each  several  State,  even  in  the  election  of  the  per- 


86 

Hence  so  many  have  proposed  as  this  sovereign  per- 
son— to  be  recognized  without  postulating  a  revolution 
— the  people,  or  nation,  as  a  mass  of  natural  persons, 
without  reference  to  any  right  of  dominion  in  the 
States,  as  political  persons  above  law.  The  attribution 
of  conscious  will  and  force  to  such  a  people,  without 
producing  any  historical  basis  for  the  assertion,  is 
equally  unwarranted,  whether  such  will  and  force  is 
called  revolutionary  or  not. 

The  historical  difficulty  with  this  conception  of  the 
sovereign  is,  that  while  every  act  of  political  jurisdic- 
tion in  the  United  States,  from  the  day  of  their 
independent  existence,  can  be  traced  to  the  will  and 
force  exercised  by  certain  voters  acting  by  majorities 
under  laws  given  by  States  in  their  corporate  capacity, 
either  severally  or  in  their  voluntary  union,  it  is  impos- 
sible to  trace  any  one  single  act  of  that  sort,  or  of  any 
other  sort,  to  the  will  and  force  of  the  people  as  a  mass 
or  of  a  majority  of  such  a  people. . 

It  is  not  only  possible,  but  highly  probable,  nay, 
almost  certain,  that  neither  the  adoption  of  the  Con- 

sonnel  of  the  Federal  Government,  and  that  this  should  even  be  recognized 
in  the  Federal  Constitution,  Art.  I,  Sec.  2.  Art.  II,  Sec.  1.  The  Due  de 
Noailles  in  his  recent  work.  Cent  ans  de  Repuhliquc  aitx  Etats  Uiiia,  I,  p. 
43,  remarks:  "Par  une  de  ces  contradictions familierea aux Ainericni nit,  la 
Constitution  des  Etats  Unis  ne  contient  avcu ne  lirescnption  d'ensenihle  stir 
cette  question  capitale."  But  he  justly  tinds  the  reason  in  the  historical 
origin  of  all  political  authority  in  this  country — "  Cette  lacune,  etrange  au 
premier  abord,  s'explique  pourtant  si  Von  se  reporte  aux  sources  des  institu- 
tions Americaines."  Reasonable  or  not,  this  "  lacune" — as  it  naturally 
seems,  to  a  French  statesman,  to  be — is  the  basis  of  that  sovereignty  which 
gives  the  United  States  a  place  among  nations.  When  it  may  have  been 
closed  up  by  placing  the  elective  franchise  in  tlie  power  of  the  central 
organ  of  government,  the  United  States  will  have  become  a  "  geographi- 
cal expression,"  a  term  applied  to  it  by  an  English  "  States-rights  "  law- 
yer, arguing  a  case  in  London  arising  out  of  the  then  pending  civil 
war. 


87 

stitution  in  1789,  nor  yet  the  assertion  of  national 
independence  in  1776,  were  preceded  by  the  conscious 
choice  of  even  a  majority  of  such  a  people  at  those 
periods ;  while  it  is  clearly  impossible  to  prove  that 
this  was  the  case.^ 

Nearly  all  the  English  and  American  writers  who 
have  taken  np  the  newly-coined  German  terms  Staaten- 
bnnd  (league  of  sovereigns)  and  Bundes-staat  (Union- 
state),  have,  I  think,  understood  the  latter  as  involv- 
ing the  conception  of  a  self-sustaining  central  govern- 
ment, to  which  the  Provinces,  Cantons  or  States  should 
exist  in  subordination.  Those  who  invent  a  new  term 
have  a  right  to  apply  it  to  suit  themselves.  But  if 
this  is  the  conception  of  the  Bundes-staat  I  have  not 
been  able  to  find  any  realization  of  such  a  political 
relation  in  past  history. 

The  latest  Swiss  Constitution  is  reported  as  having 
been  intentionally  assimilated  to  that  of  the  United 
States.^  A  notice  of  some  new  treatises  on  the  nature 
of  that  confederation  appeared  lately,  May  23d, 
1889,  in  a  leading  critical  weekly.^  Citing  the  view 
given  in  these  works  of  the  relation  between  the 
central  government  and  the  cantons,  the  American 
reviewer  says,  as  if  repeating  the  Swiss  publicist's 
thought — "Facts  point  to  the  answer,  which  an 
increasing  group  of  scholars  have  accepted  for  this 
country,  that  sovereignty  rests  with  the  people  as  a 

1  The  Due  de  Noailles,  Cent  Ans,  etc.,  I,  p.  21-25,  especially  notices 
this  in  connection  with  other  instances  of  the  exercise  of  the  function  of 
the  voters,  in  his  chapter  entitled,  La  Id  du  nombre. 

*  If,  by  these  recent  changes,  the  law  for  the  elective  franchise  has 
been  removed  from  the  several  power  of  each  canton,  and  is  to  be  deter- 
mined by  the  government  representing  the  confederacy,  as  one  political 
person,  its  Constitution  is  more  unlike  that  of  the  United  States  than 
at  any  previous  period. 

«  The  Nation. 


88 

whole,  or,  if  you  i)refer,  with  the  majority  of  the 
people."  This,  the  critic  propounds  as  confirmed  by 
the  Swiss  writer  s  statement  "that,  no  matter  what 
terms  are  used,  the  sovereignty  rests  with  the  confed- 
eration, and  the  cantons  are  not  sovereign,  but  simply 
autonomous/' 

But  this  statement  of  the  Swiss  author  expresses  an 
entirely  different  conception  from  that  which  tlie 
reviewer  would  have  it  indicate.  It  is  "the  confed- 
eration" of  cantons,  which  holds  the  sovereignty,  and 
constitutes  the  Bundes-staat ;  as,  here,  it  is  the  States 
which  constitute  the  United  States — the  Union-state 
existing  from  July  4th,  1776,  or  earlier,  and  antedating 
the  constitutional  government,  which  here,  as  the 
central  government  in  Switzerland,  is  only  an  agency 
government,  not  sovereign  itself,  and  not  representing 
"the  people  as  a  whole." 

"  The  people  as  a  whole,"  in  Switzerland,  can  no 
more  be  called  a  "confederation,"  than  can,  here, 
"the  people  as  a  whole"  be  called  the  "United 
States." 

It  takes  more  than  the  acceptance  of  any  "  group  of 
scholars,"  however  numerous,  to  make  the  "facts," 
by  which  the  possession  of  sovereign  power  becomes 
known  to  the  world.  The  proof  of  such  possession 
of  power  by  the  geographical  people,  as  against  the 
undisputed  records  of  history,  has  been  asked  for,  for  a 
century  ;  but  has  not  yet  been  forthcoming. 

The  assertion  of  such  a  possession  rests  entirely  on 
a  priori  reasoning,  or  an  assumption  which  is  as  avail- 
able to  prove  the  several  sovereignty  of  the  smallest 
State  in  a  confederacy,  or  of  a  township  or  commune, 
as  to  prove  that  of  a  continent.  It  is  the  doctrine  that, 
by  natural  necessity,  supreme  political  i)ower  must  be 
vested  cle  facto  in  a  collection  of  human  beings,  as 


89 

people  or  nation,  though  the  number,  extension  and 
location  of  any  holders  of  political  power  can  be  known 
only  a  posteriori,  from  the  visible  exercise  of  such 
power.  As  far  as  words  could  go,  it  was  the  doctrine 
on  which  the  several  colonies  rested  whatever  claim 
they  ever  made  to  several  independence  as  States.  It 
could  be,  and  was  held  by  Federalists  and  by  Republic- 
ans a  century  ago.  It  was  put  forth  as  a  logical  basis 
for  squatter  sovereignty  in  1856.  It  was  preached 
North  and  South  by  Constitution-makers,  and  by  Jef- 
ferson and  John  Adams  ;  each  basing  on  it  the  asser- 
tion of  State-sovereignty,  as  it  still  stands  in  the 
present  Constitution  of  Massachusetts,  in  the  words  of 
the  last  named  of  these  patriots. 

Mr.  John  Q.  Adams,  in  the  very  remarkable  Address 
from  which  I  have  cited,  had  the  candor  and  the  cour- 
age to  apply  this  doctrine  to  "the  right  of  a  State  to 
secede  from  the  Union.- '  I  give  you  his  own  words — 
without  accepting  his  premises,  whatever  they  may 
have  been,  and  much  less  his  conclusion.     They  read  : 

"In  the  calm  hours  of  self-possession,  the  right  of  a 
State  to  nullify  an  Act  of  Congress  is  too  absurd  for 
argument,  and  too  odious  for  discussion.  The  right  of 
a  State  to  secede  from  the  Union  is  equally  disowned 
by  the  principles  of  the  Declaration  of  Independence. 
Nations  acknowledge  no  judge  between  them  upon 
earth,  and  their  governments,  from  necessity,  must  in 
their  intercourse  with  each  other  decide  when  the  fail- 
ure of  one  party  to  a  contract  to  perform  its  obligations 
absolves  the  other  from  the  reciprocal  fulfillment  of  his 
own.  But  this  last  of  earthly  powers  is  not  necessary 
to  the  freedom  and  independence  of  States  connected 
together  by  the  immediate  action  of  the  people  of 
whom  they  consist.  To  the  people  alone  is  there  re- 
served, as  well  the  dissolving  as  the  constituent  power, 


90 

and  that  power  can  be  exercised  by  them  only  under 
the  tie  of  conscience,  binding  them  to  the  retributive 
justice  of  heaven. 

"With  these  qualifications,  we  may  admit  the  same 
right  as  vested  in  the  people  of  every  State  in  the 
Union,  with  reference  to  the  general  government, 
which  was  exercised  by  the  people  of  the  United 
Colonies  with  reference  to  the  supreme  head  of  the 
British  empire,  of  which  they  formed  a  part — and, 
under  these  limitations  have  the  people  of  each  State 
in  the  Union  a  right  to  secede  from  the  Confederated 
Union  itself. 

'' Thus  stands  the  eight.     But,"  etc.  ^ 

The  attribution  of  the  Constitution  to  the  will  and 
force  of  the  nation  as  a  geographical  people — "the 
people  ^s  a  whole" — is,  of  course,  not  a  novelty. 
Fifty  and  odd  years  ago,  in  the  days  of  nullification,  it 
was  the  cheval  cle  hataille  for  Webster  and  Story.  But 
they  did  not  look  backwards  for  its  jDedigree  in  a  revo- 
lution. Neither  did  they  propose  to  demonstrate  the 
generation  of  political  existence  from  primeval  chaos 
by  scientific  theories.  Being  lawyers,  before  being 
politicians,  they  took  the  Constitution  as  self-existent 
law,  and  the  words  "we,  the  people,"  as  the  enacting 
clause  which  brought  the  sovereign  into  being.  This 
has  always  been  the  position  of  the  Supreme  Court 
also.  (As  in  Chase's  opinion  in  Texas  v.  White.)  It 
has  equally  been  that  of  the  commentators,  down  to 
the  latest.  John  Q.  Adams,  and  the  recent  discovered 
of  revolution  in  the  adoption  of  the  Constitution,  do 
not  put  the  cart  before  the  horse  quite  as  openly. 
Admitting  their  revolution  as  fact,  Adams  might  have 
claimed,  as  the  others  do  claim,  that  they  have  re- 
vealed the  legislator  existing  before  the  hiw. 

'  Th<-  Jithilet',  etc. ,  p.  68. 


91 

One  principal  reason  for  the  long  continued  discord 
in  opinion  as  to  the  nature  of  our  political  institutions 
has  been  in  the  variety  of  meaning  attached  by  differ- 
ent persons  to  the  words — Union,  law,  sovereignty, 
nation,  people.  They  have  often  been  used  in  the  way 
of  "natural  and  innocent  hyberbole,"  most  frequently 
without  any  thought  of  defining  their  intended  force 
and  significance.  But  they  have  not  been  so  used 
"by  the  school  of  interpretation  which  prevailed  until 
the  close  of  the  civil  war,  and  which  still  holds  its 
ground  in  the  literature  of  our  constitutional  history. 
They  were  literal  and  exact  technicalities,  in  conclu- 
sions, if  not  in  premises.  Composed  into  political 
creeds,  these  terms  have  been  the  means  of  exalting 
arbitrary  and  unnatural  hypotheses  to  the  rank  of 
fundamental  truth.  With  the  endorsement  of  eminent 
names,  they  became  the  axioms  of  a  great  political 
party,  and  the  justification  of  a  persistent,  and  at 
length  triumphant,  political  policy." 

The  writer  of  these  remarks  adds  : 

"  Time  will  show  that  the  policy  had  more  substan- 
tial justification  than  the  defective  historical  reasoning 
which  supported  it.  Since  the  end  of  a  long  historical 
process  has  been  happily  reached,  it  is  possible  to 
examine  calmly  the  views  which  contributed  to  the 
result.  Patriotic  fictions  are  no  longer  political  neces- 
sities. We  shall  not  undermine  or  undervalue  our 
present  nationality  by  showing  that  the  philosophy 
which  assisted  in  its  establishment  was  built  on  a  mis- 
conception of  history."  ^ 

I  can  fully  apj^reciate  the  justice  of  these  observa- 
tions without  knowing  whether  the  author's  full  exhi- 
bition of  the  "long  historical  process"  will  be  such  as 
I  could  accept. 

^  Dr.  Small,  in  The  Beginnings  of  Am.  Nationality.    Pp.  39,  40. 


92 

It  is  very  common  for  those  who  nowadays  attribute 
sovereignty  to  the  government  as  representing  the 
nation  or  people,  in  distinction  from  the  States,  to 
assume  that  the  Federalist  party  took  the  same  view, 
before  and  after  the  adoption  of  the  Constitution.  The 
fact  is,  that  there  was  no  difference  between  them  and 
their  opponents,  the  Republican  party  of  that  time,  as 
to  recognizing  the  sovereignty  of  the  several  States, 
either  before  or  after  that  event. 

That  the  Federalists  were  in  favor  of  enlarging  the 
powers  to  be  entrusted  to  the  organ  of  central  govern- 
ment, under  any  Constitution,  while  the  Republicans 
were  characterized  by  their  jealous  distrust  of  any 
Federal  authority,  as  limiting  the  sovereign  discretion 
of  the  States,  is  matter  of  undisputed  history.  And  if 
there  were  any  at  that  day  to  talk  up  the  present  dem- 
ocratic dogma  of  the  sovereignty  of  the  people,  they 
were  to  be  found  in  the  ranks  of  the  defenders  of 
State-rights. 

The  leading  Federalists,  on  the  contrary,  have  left 
on  record  their  unconcealed  aversion  to  the  rule  of  the 
people-king.  Among  them,  the  writers  of  the  Federalist, 
and,  chief  among  these,  Hamilton,  who  to-day  is  cited  as 
authority  for  construing  the  Constitution  as  the  imme- 
diate act  of  the  people  or  nation  as  the  unitary  posses- 
sor of  all  sovereign  power. 

Mr.  J.  Q.  Adams  may,  in  1839,  have  claimed  descent, 
as  party  man,  from  the  Federalists.  But  his  father,  John 
Adams,  in  1786,  must  be  admitted  as  a  better  witness  to 
their  ideas  and  aims  at  that  time.  We  can  learn  his 
own  notions  on  this  matter  of  sovereignty  from  the  first 
and  second  letter  of  his  work  published  at  that  date — 
"  A  defense  of  the  Constitutions  of  government  of  the 
United  States  against  the  attack  of  M.  Turgot,  in  his 
letter  to  Dr.  Price,  written  1786."     Turgot  has  depre- 


93 

ciiited  the  American  States'  systems,  and  would  have 
the  whole  people  recognized  as  one  sovereign,  to  be 
represented  by  a  single  legislative  assembly.  Mr. 
Adams  defends  the  State  organizations,  as  having 
grown  up  by  necessity,  and  treats  the  Frenchman's 
ideal  as  an  impossibility. 

The  sixth  letter  or  chapter  of  this  work  of  John 
Adams  is  devoted  to  the  examination  of  an  English 
book  of  the  preceding  century,  published  during  the 
civil  wars,  maintaining  the  doctrine  of  the  sovereignty 
of  the  people  (Marchamont  Nedham's  The  Excellency 
of  a  Free  State,  or  the  Right  Constitution  of  a  Com- 
monwealth, 1656),  which  Adams  speaks  of  as  "a valu- 
able morsel  of  antiquity  well  known  in  America,  where 
it  has  many  partisans."  In  this  letter  Adams  sets  out 
more  freely  the  evils  which  have  followed  and  might  he 
expected  to  follow  from  that  doctrine.  His  forecastings 
of  these  possible  results  have  a  singular  resemblance 
to  the  remonstrances  against  abuses  maintained  by 
political  parties,  when  in  power,  such  as,  in  our  day, 
are  heard  from  recalcitrant  members,  j)opularly  called 
"Mugwumps,"  of  the  ruling  majority. 

The  two  parties  in  America  at  that  time  differed 
only  as  to  the  extent  of  the  powers  to  be  exercised  by 
whatever  instrument  of  the  Union-state  should  be 
invested  with  a  jurisdiction  independent  of  that  held 
by  each  several  member  of  this  Union-state. 

Most  of  the  confusion  seen  in  the  arguments  of  those 
who  have  ojjposed  your  States-rights  conclusions  arises 
from  considering  the  possession  of  supreme  political 
power  as  the  effect  of  law,  or  of  something  analogous 
to  law.  It  was  common,  some  years  ago,  for  them  to 
describe  the  several  States  as  sovereigns  lying  under 
the  obligations  of  a  contract  expressed  in  the  words  of 
a  document.     Somewhat  later,  their  jurists  would  rep- 


94 

resent  this  instrument  as  law,  established  for  all  the 
States  that  might  afterwards  exist,  by  some  authority 
not  identical  with  that  of  the  thirteen  States  in  1787. 
The  Supreme  Court,  speaking  of  "an  indestructible 
union  of  indestructible  States,"  ascribes  it  to  the  will 
and  force  of  somebody  other  than  these  States,  as  indi- 
cated in  the  ratification  of  the  Constitution  by  the 
States.  That  is,  it  imagines  a  law  for  political  exist- 
ence, enacted  at  that  moment  and  binding  on  these 
States  indefinitely,  mthout  reference  to  any  continu- 
ing consent  on  their  parts  or  on  the  part  of  anybody 
else. 

If  no  other  provision  of  the  Constitution  as  it  came 
from  the  hands  of  the  convention  had  coercive  quality 
for  anybody,  this  provision  in  its  last  (YII)  Article,  for 
the  effect  of  its  ratification  by  nine  States,  could  not  be 
Jaw  to  deteiTnine  the  effect  of  such  ratification.  ^  It  was 
out  of  character  with  and  out  of  place  in  a  Constitution 
to  be  regarded  as  law.  It  could  not,  by  being  inserted 
in  such  an  instrument,  have  any  more  force  and  effect 
than  had  the  opinion  of  the  convention  expressed  in 
the  resolution  accompanying  their  report,  "'  Resolved 
that  the  preceding  Constitution  be  laid  before  the 
United  States  in  Congress  assembled,  and  that  it  is  the 
opinion  of  this  convention  that  it  should  afterwards  be 
submitted  to  a  convention  of  delegates  chosen  in  each 
State  by  the  people  thereof  under  the  recommendation 
of  its  legislature  for  their  assent  and  ratification,"  etc. 

There  are  those  who  would  represent  the  convention 
of  framers  as  holding  supreme  political  power  at  this 
moment  by   revolutionary   right,  and   it  would  be  in 

^  J.  Q.  Adams,  in  a  passage  from  The  Jubilee  Address  (cited  ante), 
speaks  of  this  provision  of  the  Constitution  as  that  *'  which  had  prescribed 
that  the  ratification  of  nine  States  shouhl,"  etc.  He  thus  makes  the  Consti- 
tution decree  its  own  existence. 


95 

harmoii}^  witli  tliis  conception  to  regard  this  provision 
as  their  law  binding  on  the  States. ' 

A  valuable  essay  in  a  volume  published  November 
9,  1889,  under  the  auspices  of  the  Johns  Hopkins  Uni- 
versity, -  is  that  by  Professor  Edward  P.  Smith  on 
"  The  movement  towards  a  second  constitutional  con- 
vention in  1788."  The  writer  says  of  the  constitutional 
convention  of  1787 — "The  work  of  the  convention  was 
revolutionary.  In  a  secret  conclave  the  ablest  men  of  the 
nation  were  seeking  to  invest  the  central  government 
with    those    sovereign    powers   wdiich   the   individual 

States  had  usurped This  council  of  the  States, 

the  Federal  Convention,  in  providing  for  the  future, 
did  not  hesitate  to  repudiate  the  very  basis  upon  which 
itself  was  formed.  It  refused  to  admit  the  principle  of 
a  confederation  of  States ;  it  declared  for  a  national 
union.  .  .  .  This  change  was  no  coup  d.  etat ;  it  was 
peacefully  accomplished,  but  it  was  none  the  less  a 
revolution." 

Here  w^e  have  the  latest  assertion,  by  scJiolars,  of 
Revolution  vs.  State  Usurpation.  It  would  seem  that 
if,  under  these  circumstances,  the  convention  actually 
made  the  Constitution  the  law  of  the  land,  the  dele- 
gates were  much  like  usurpers  themselves,  by  the  show- 
ing of  this  writer,  which  is  the  same  in  this  respect  as 
that  given  by  The  Political  Science  Quarterly  ;  only 
that,  in  the  place  of  any  sup2)osed  principles  of  science, 
we  are  offered  the  bare  will  and  pleasure,  without  a  par- 
ticle of  force  to  sustain  it,  of  the  convention.  The 
writer  has  not  volunteered  any  explanation  of  the  posi- 
tion of  the  non-ratifying  States,  which  has  been  the 
point  we  have  had  directly  in  view. 

^  This  appears  to  be  held  by  Jiidice  Coolcy,  in  his  Principles  of  Consti- 
tutional Law,  p.  16. 

*  Essays  on  the  Constitiuioual  History  of  the  United  States  in  the  For- 
mative Period,  1775,  1789,  p.  48. 


96 

Whatever  consequences  might  follow  from  ratifica- 
tion by  nine  States,  or  more,  must  have  been  poUtU-al 
effect^  resting  on  will  and  force  above  law.  As  such, 
then,  it  was,  or  was  not,  revolutionary,  according  as  it 
was,  or  was  not,  consistent  with  the  political  nature  of 
the  thirteen  United  States  at  that  time. 

Such  will  and  force  must  be  sought  for  in  some  per- 
son or  persons  then  already  existing  and  continuing 
outside  of  the  Constitution ;  that  is,  independently  of 
it,  as  laiD. 

These,  so  far  as  known  to  us  from  the  memorials  of 
the  time,  could  only  have  been  those,  whoever  they 
were,  who  were  represented  in  the  convention  which 
framed  the  instrument  and  in  the  Congress  of  the 
Confederation  which  had  convoked  that  convention, 
and  to  which  that  convention  had  reported  its 
labors,  and  by  which  the  instrument  was  ]iroiiosed 
to  each  of  the  thirteen  States  for  several  ratification  or 
non-ratification  in  their  conventions,  and  by  which, 
after  notice  of  ratification  by  nine  or  more  States,  this 
instrument  was  declared  as  the  Constitution  for  a  new 
government. 

If  we  may  supiH)se  that  the  assembled  delegates, 
themselves,  knew  what  they  had  been  about — there  is 
their  certificate  appended  to  the  Constitution  as  reported 
by  them — "Done  in  convention  by  the  unanimous  con- 
sent of  the  States  present,  the  17tli  day  of  September, 
1787,''  etc.,  accompanied  by  the  letter  of  their  j^residing 
officer,  George  Washington,  speaking  of  "each  State 
in  the  convention." 

But  as  all,  or  the  vast  majority  of  the  authorities  of 
every  section  and  school,  have  represented  the  thirteen 
States,  whether  by  right  or  by  usurpation,  as  the  only 
holders  of  sovereignty  up  to  that  time,  they  must  sup- 
pose that  they — these  thirteen  States — were  rejiresented 


97 

in  these  bodies — the  convention  and  the  existing  Con- 
gress— either  as  severally  sovereign  or  in  some  other 
sovereign  capacity.  That  is,  unless,  perhaps,  some- 
body can  prove  that  some  other  persons  or  personalities 
had,  at  that  crisis,  by  revolutionary  will  and  force, 
ousted  these  States,  and  had  been  really  represented 
both  in  this  convention  and  in  this  Congress,  or,  if  not 
in  these  immediately,  then,  at  least,  in  the  ratifying 
State  conventions,  and  had,  as  snc7i  revohdioiiary 
2)0  wer,  l)een  recognized  by  the  Congress  of  the  Confed- 
eration. 

All  the  older  views  of  law  found  in  the  Constitution, 
either  as  having  force  in  itself  or  as  indissoluble  con- 
tract, by  moral  obligation,  are  nowadays  in  i^opular 
language,  and  also  in  that  of  courts  and  jurists,  almost 
sujiplanted  by  the  supposed  discover}^  of  an  actual  leg- 
islator in  the  people  of  the  whole  country,  without 
regard  to  qualifications  for  voting  given  by  State  law, 
or  in  a  majority  of  such  a  people.  Such  discovery, 
made  to  give  a  logical  appearance  to  the  production  of 
a  law  governing  the  case,  suggests  the  argument  of  the 
deistical  moralists  against  their  atheistical  associates 
in  the  French  Directory  during  their  revolution — that 
though  there  was  no  God  it  was  necessary  to  invent 
Him. 

The  perception  of  a  like  necessity  exjilains  the  posi- 
tion of  our  discoverers  of  revolution,  who  resolve  to 
ignore  the  States,  in  the  adoption  of  the  Constitu- 
tion. 


IX. 


From  the  essential  nature  of  the  Union-state,  as  the 
single  possessor  of  sovereign  power  up  to  that  time,  the 
capacity  of  each  of  the  thirteen  to  join  with  others  in 
creating  this  or  any  other  organ  of  national  govern- 
ment, and  at  the  same  time  to  exercise  independent 
authority  for  local  i^urposes,  was  a  political  right  inci- 
dent to  its  existence  as  a  member  of  this  Union-state. 
But  it  was  not  a  right  dependent  on  any  law.  It  was 
a  right  which,  by  its  definition,  existed  only  by  vol- 
untary continuation  in  union  with  other  similar 
States. 

The  will  and  force  of  this  Union-state,  consisting  of 
thirteen  members,  had,  when  acting  primarily  for 
external  relations,  been  exhibited  first  in  the  Conti- 
nental Congress,  and,  secondly,  in  the  Congress  of  the 
Confederation.  Later  on,  this  Union-state,  still  consist- 
ing of  thirteen  members,  had,  when  acting  primarily 
with  reference  to  its  internal  political  relations,  been 
represented  in  the  Constitutional  Convention,  Mud 
again  in  the  same  Congress  of  the  Confederation  win  mi 
presenting  the  proposed  Consf  itution  for  ratificntiou  to 
the  States  severally.  As  such  Uni{m-state,  still  con- 
sisting of  thirteen  members,  it  determined  that  a  new 
organ  of  government  should  l)egin  to  oi)erate  in  and  for 
such  States,  l)eing  nine  or  more  in  number,  as  should 
ratify  this  Constitution. 


90 

After  the  installation  of  the  new  organ  of  govern- 
ment by  and  for  eleven  States,  acting  in  accordance 
with  the  snmmons  issned  by  the  existing  Congress  after 
its  receipt  of  notice  of  these  ratifications,  that  Con- 
gress, still  representing  the  Union-state  of  thirteen 
members,  dissolved  itself.  After  this,  the  only  instru- 
ments of  government  acting  by  the  authority  of  the 
Union-state,  still  consisting  of  thirteen  members,  were 
the  several  organs  of  local  government,  acting  in  thir- 
teen States  still  existing  as  members  of  the  sovereign 
Union-state,  and,  at  the  same  time,  the  new  organ  for 
general  government  acting  at  first  only  in  and  for  and 
by  the  co-operation  of  the  eleven  ratifying  States. 

But,  even  when  "this  Constitution "  was  "  estab- 
blished"  only  "as  between  the"  eleven  "States  so 
ratifying  the  same,"  its  authority  "  as  between  "  such 
States  must  have  been  derived  from  the  Union-state 
consisting  up  to  that  time  of  thirteen  members. 

The  Union-state,  as  composed  of  thirteen  members, 
had,  as  the  only  holder  of  sovereignty,  and  by  its  nature 
as  such,  resolved  on  continuing  as  Union-state,  to 
which  the  existence  of  the  several  States,  as  volun- 
tary members,  Avas  essential.  Therefore,  the  members 
of  this  sovereign  Union-state  would,  afterwards  as 
before,  be  those  only  which,  while  exercising  local 
government,  should  voluntarily  co-operate  in  sustaining 
some  instrument  of  national  government.  This  would 
be  the  case  though  a  number  less  than  all  of  the  orig- 
inal thirteen  should  voluntarily  share  in  exercising 
sovereign  power,  by  ratifying  the  Constitution  and 
continuing  to  support  the  government  according  to  its 
provisions,  while  others  might  submit  to  its  authority 
only  as  territory  and  population  belonging  to  the  Union- 
state. 

For,  as  no  single  member  ever  before  had  any  politi- 


100 

cal  faculty  for  either  local  government  or  national 
government,  except  as  voluntarily  co-operating  with 
the  other  States,  its  continued  possession  of  these 
combined  faculties,  that  is,  its  existence  as  State,  was 
dependent  on  this  voluntary  co-ox)eration  in  sustaining 
this  new  instrument  of  national  government. 

As  long  as  will  and  force  to  sustain  this  instrument 
of  government  should  be  exhibited  by  a  number  of  such 
States  voluntarily  continuing  in  union,  they  only 
w^ould,  as  constituting  the  Union-state,  l)e  the  sover- 
eign in  and  for  all  territory  and  population  w  hich  had 
before  that  time,  during  the  period  of  the  Congress  of 
the  Confederation,  been  held  by  such  Union-state. 

Hence,  if  at  that  time  either  North  Carolina  or  Rhode 
Island  had  resolved  on  permanent  abstention  from  join- 
ing in  the  exercise  of  power  through  the  new  govern- 
ment, by  ratilication  of  the  Constitution,  each  would 
for  itself  have  renounced  the  position  of  member  of  the 
pre-existing  and  still  continuing  Union-state,  and  so 
have  lost  all  political  existence. 

But  the  dominion  and  Jurisdiction  of  the  Union-state, 
continued  in  the  eleven  ratifying  States,  would  have 
remained  unchanged,  and  would  have  extended  over 
the  limits  of  these  non-ratifying  States,  as  territory  or 
districts  ;  whose  local  laws  would  still  derive  authority 
from  sovereignty  vested  in  the  Union-state  then  con- 
sisting of  eleven  members  only. 

These  States  only,  or,  if  anybody  likes  it  better,  the 
political  people  of  these  eleven  States  and  of  these  only, 
would  then  be  identified  as  that  "  Peoph'  of  tlie  I'nited 
States"  which  was  speaking  in  the  ])r»'aml)lp  to  the 
adopted  Constitution.  This  Constitution  would  then, 
as  law,  be  established  "for  the  United  States  of  Auier- 
ica";  meaning,  not  (mly  the  territory  and  po])ulMtion  of 
these  eleven  States,  l)ut  also  all  territory  and  poi)iilation 


101 

ever  embraced  in  the  I'^nion-state  ;  that  is,  for  the  terri- 
tory and  popuhition  of  all,  including  those  of  the  non- 
ratifying-  States,  vvithout  regard  to  their  former  auto- 
nomy or  separate  jurisdiction.  For  all  several  juris- 
diction within  their  geograpliical  limits,  so  far  as  it 
would  continue  at  all,  would  continue  in  virtue  of  the 
will  and  force  of  the  eleven  ratifying  States,  now  sov- 
ereign in  the  Union-state,  acting  through  their  newly- 
constituted  instrument  of  general  government. 

This  result  would  have  depended  on  one  condition 
— that  will  and  force  sufficient  to  maintain  the  former 
dominion  of  the  Union-state  should  be  found  in  the 
States  sustaining  the  common  organ  of  government. 

So  far  as  there  was  any  laii\  giving  validity  to  a 
ratification  by  nine  or  more  States  in  respect  to  such 
States  only,  it  could  only  rest,  after  as  w^ell  as  before 
that  ratification,  on  the  will  and  force  of  all  such  of 
these  States  as,  having  been,  should  voluntarily  con- 
tinue members  of  the  Union-state.  For  all  these  States 
having,  as  represented  in  the  Congress  of  the  Confedera- 
tion, joined  in  summoning  the  Convention,  were  repre- 
sented in  it ;  even  if  not  sending  delegates  ;  as  did  not 
Rhode  Island.  They  all  were  represented  in  the  same 
Congress  up  to  the  installation  of  the  new  government 
by  the  instrumentality  of  the  same  Congress. 

But  in  these  questions  we  are  outside  the  scope  and 
domain  of  law.  Will  and  force  are,  as  you  and  I  have 
agreed,  the  conditions  of  sovereign  power.  Here,  i)ower 
and  right  are  identified.  Therefore,  ratification  by  nine 
or  more  States  could  not  impose  any  legal  obligation, 
even  ujwn  any  ratifying  State  or  States.  It  remained, 
as  it  always  must  remain,  to  be  seen  whether  will  and 
force  to  sustain  the  Union-state,  acting  through  any 
government  agent  whatever,  would  be  forthcoming. 
We  may  conceive  a  possible  ratification  by  nine  States, 


102 

or  even  by  more,  which,  in  all  human  probability, 
would  not  have  been  followed  by  the  establishment  of 
this  government ;  even  for  such  States.  If  the  non- 
ratifying  States  had  been  central,  being  also  relatively 
stronger  in  territory,  resources  and  population — say 
four,  Xew  York,  Pennsylvania,  Virginia,  with  either 
New  Jersey  or  Maryland,  or  only  the  iirst  three  of 
these,  or  even  the  first  two — we  may  feel  assured  that 
the  inauguration  of  the  new  government  as  directed  by 
the  existing  Congress  of  the  Confederation  would  not 
have  followed,  even  for  the  nine  ratifying  States.  But 
the  Union-state  would  still  have  existed  as  before  ;  and 
this,  independently  of  the  circumstance  that  the  Con- 
gress of  the  Confederation  would  have  still  continued 
in  existence  as  instrument  for  this  Union-state,  and 
might  have  so  continued  indefinitely. 

The  position  of  those  two  States,  Xorth  Carolina  and 
Rhode  Island,  at  that  time  was  analogous  to  that  of  a 
State  which,  during  the  existence  of  the  Continental 
Congress,  should  have  refused  to  co-operate  in  sus- 
taining the  independence  of  the  colonies  ;  when,  ac- 
cording to  the  view  here  taken,  the  other  States,  having 
will  and  force  to  sustain  continued  existence  as  the 
Union-state,  would  have  had  the  political  right  to 
disallow  the  political  capacity  of  such  State,  while 
still  holding  it  as  within  the  dominion  of  this  Union- 
state. 

In  the  matter  of  political  existence,  facts,  or,  rather, 
the  one  fact  of  exhibition  of  will  and  force  adequate  to 
sustain  it,  can  never  l)e  the  pioduct  of  consents,  inten- 
tions, declarations,  or  written  Constitutions.  The  Con- 
stitution i^roposed  for  the  Southern  Confederacy,  in 
18G1,  expressed  as  plainly  as  words  could,  that  it 
should  consist  of  severally  sovereign  polities,  allied  as 
independent  nations. 


103 

But,  had  their  separation  from  the  Union  been 
finally  established  by  force  of  anns,  they  could  not 
have  possessed  that  several  sovereignty.  All  they 
could  have  got  would  have  been  got  as  a  Union.  They 
must  inevitably  have  constituted  another  Union-state ; 
in  which  the  political  capacity  of  each  member  should 
depend  on  voluntary  continuance  in  such  Union.  For 
the  only  will  and  force  they  could  show  for  any 
political  existence  at  all  was  as  such  a  Union. 

It  is  true  that  no  term  had  been  set,  either  by  the 
Convention  or  by  the  Continental  Congress,  limiting 
the  time  during  which  ratification  would  be  open  to 
any  State  in  this  position.  It  was  then,  and,  in 
analogous  cases  must  always  be,  a  question  of  j^olitical 
expediency,  when  the  period  of  choice  between  ratifi- 
cation, with  participation  in  the  sovereignty  of  the 
Union-state,  and  non-ratification,  with  loss  of  local 
self-government,  would  exj^ire. 

But  there  is  no  reason  for  holding  that  the  inaugura- 
tion of  the  government  for  the  ratifying  States  only 
should  establish  as  alien  sovereignties  any  pre-exist- 
ing members  of  the  Union-state,  which,  in  that 
capacity,  had  joined  in  making  that,  or  any  other 
government  i^ossible  for  each  and  all  the  States 
invited  to  ratify.  The  two  non-ratifying  States 
might  have  continued  non-participants  in  sustain- 
ing the  new  government  for  a  much  longer  period, 
and  the  necessary  intercourse  between  their  inhabit- 
ants and  those  of  the  other  States  might  have  given 
rise  to  difficult  questions  to  be  settled  by  measures 
more  political  than  legal.  But  as  long  as  they  did 
not  propose  separate  existence  for  any  international 
relations  with  foreign  countries,  their  capacity  for 
political  membership  in  the  sovereignty  of  the 
Union-state  might  be  recognized  indefinitely;   as  in 


iT7! 


104 

fact  it  was  uj)  to  the  time  of  their  ratifications,  one 
year  after  tlie  inauguration  of  the  government.  In  the 
meantime  there  was  no  international  rehition  recognized 
as  between  them  and  the  government.  Their  citizens 
were  never  considered  aliens  to  the  Union-state  and 
their  j^osition  towards  foreign  countries  was  still  that 
of  parts  of  the  United  States. 

Tliey  were  then,  in  their  political  asjwct,  much  like  the 
inchoate  States,  Vermont  and  Tennessee,  at  that  time. 

Something  of  a  parallel  in  history  may  perhaps  be 
found  in  the  relation  between  the  Dutch  Provinces 
after  the  Union  of  UtrecJit  (Jan.  28,  1579,)  which  cor- 
responded somewhat  to  our  Articles  of  Confederation 
and  our  Constitution ;  as  \h.e\Y  Pacification  of  Ghent  at 
an  earlier  date,  1576,  corresj^onded  to  our  Declaration 
of  Indei)endence.  There  were  some  Provinces  which 
did  not  at  once  join  Avith  Orange  and  the  rest  in  that 
later  Act  of  Union.  But  they  were  still,  in  fact,  mem- 
bers of  the  pre-existing  Union-state,  and  their  option 
to  join  in  supporting  that  instrument  remained  open.' 

As,  therefore,  there  was  no  transfer  of  sovereignty — 
because  the  Union-state  continued  as  Union-state — 
there  was  no  revolntion  in  the  adoption  of  the  Consti- 
tution and  in  the  installation  of  the  new  organ  of 
government  in  1789.  And,  as  there  was  no  revolution, 
the  question  as  to  a  State's  right  to  secede  was  then  and 
has  since  been  the  same  np  to  the  present  moment ; 
nnless  there  has  been  a  revolution  in  the  interval. 

You  may,  perhaps,  want  to  ask  me  whether  I  sup- 
pose the  framers  of  the  Constitution,    or  the  other 

'  Compare  observations  on  the  United  Provinces  of  the  Netlierlauds  ; 
Sir  W.  Temple's  Worlds,  Vol.  I,  p.  20.  iV[otley,  Rise  of  the  Dutch  Repub- 
lic, III,  415,  expressly  denies  the  existence  of  such  parallel,  because 
"  the  people  of  the  United  States  of  the  Netherlands  never  assembled,  as 
did  [so  lie  avers]  the  people  of  the  United  States  of  America,  two  centuries 
later,"  etc. 


105 

fathers  and  founders  in  the  revolutionary  era,  before 
them,  had  in  their  minds  the  conception  of  the  Union- 
state  as  I  have  offered  it  to  you.  I  do  not  suppose  that 
they  had.  From  my  own  study  of  their  record,  I  shouhl 
say  that,  while  they  had  a  very  clear  comprehension 
of  the  necessities  of  their  own  position,  they  all  had 
very  indistinct  conceptions  of  the  political  nature  and 
consequences  of  their  own  work.  But  they  were  no 
worse  off  in  that  respect  than  the  founders  of  other 
States  ;  if  indeed  founders  of  such  things  can  be  said 
to  have  ever  existed — in  the  sense  of  men  who  began 
polity  and  government  where  none  had  ever  existed 
before.  The  Solons  and  Lycurguses  of  the  classic  tradi- 
tions, regarded  as  founders,  are  almost  as  mythical  as 
Prometheus.  Our  colonial  and  revolutionary  heroes 
were  like  the  followers  of  Eneas  bringing  his  household 
gods  to  Latium  :  still,  as  when  launching  their  ships 
from  the  slope  of  Mount  Ida, 

Incerti  quo  fata  ferant,  ubi  sistere  detur, 

when  scouting,  curious  and  hopeful,  anxiously  self- 
reliant,  but  ignorant  of  destiny,  over  the  Laurentian 
fields ;  in  sight  of  hills  which  their  prosperity  should 
one  day  crown  with  the 

Alt;ie  moenia  Romfe. 

The  political  Constitution  of  our  index)endent  domain 
was  not  the  work  of  those  "  fathers  and  founders"  of 
a  century  ago  ;  that  is,  not  theirs  by  their  choice.  It 
was  made  for  them  by  tlieir  own  antecedents,  and  the 
written  Constitution  was  no  such  original  product  of 
the  genius  of  a  handful  of  framers  as  several  distin- 
guished foreign  critics  have  professed  to  know  it. 

In  this  matter  none  of  us  are  better  off  than  those 
fathers  and  founders.  Optimists  or  pessimists — we  must 
accept  the  past  as  it  has  been,  if  we  would  do,  in  the 
present,  anything  to  continue  in  the  future. 


I  have  already  in  this  letter  acknowledged  that, 
regarded  simply  as  statement  of  fact,  this  version  of 
our  history  which  I  have  here  offered  yon  is  as  con- 
tradictory to  any  i-eceived  by  the  majority  of  those 
who  repudiate  your  doctrine  of  State-sovereignty  as  it 
is  to  that  which  you  have  advanced  to  support  it.  But, 
independently  of  their  opinions  as  to  your  political 
position,  I  should  anticipate  that  l)y  far  the  larger  part 
of  all  who  are  opposed  to  the  ordinary  States-rights 
doctrine  would  except  to  my  historical  stateinent  as 
being,  possibly,  a  new  foundation  for  old  forms  of 
political  heresy.  For  they  might  justly  infer  that,  if 
this  were  accepted  as  the  only  consistent  exposition  of 
our  earlier  political  experience,  the  political  transac- 
tions of  about  a  quarter  of  a  century  ago  might  require 
some  explanation  different  from  any  which  had  been 
offered  by  themselves. 

As  between  this  class  of  your  opponents  and  myself, 
I  may  presume  to  ask  you  to  judge  as  to  the  political 
consistency  of  our  several  explanations  of  the  internal 
relation  of  the  States  during  the  period  known  as  the 
civil  war:  sui)posing  that  there  is  a  necessity  for  us  all 
to  accept  accomplished  facts  of  our  own  time. 

It  would  re(piire  too  much  si)a('e  to  cite  individual 
opinions  more  or  less  accredited  with  authority  among 
those  who  have  proposed  to  sustain,  or  even  define,  the 


107 

position  of  the  Federal  Government,  1861-1867,  in 
resisting  the  effort  made  to  establish  eleven  States  of 
the  Union  as  a  separate  confederacy. 

But  your  opportunities  of  knowing  what  these  opin- 
ions are  have  been  equal  to  mine.  I  therefore  should 
not  offer  to  recall  any  such,  by  Avhomsoever  supported, 
except  to  notice,  in  a  general  way,  wherein  I  regard 
the  most  popular  as  inconsistent  with  my  own  view  of 
the  nature  of  jwlitical  jurisdiction  and  with  its  actual 
investiture  in  this  country. 

It  may  be  said,  generally,  of  these  other  defenses  of 
the  action  of  the  government,  that  they  all  are  neces- 
sarily unsatisfactory,  from  their  failure  to  discriminate 
between  two  essentially  different  conceptions  of  such 
action. 

1.  One  of  these  is  the  conception  of  some  action  of 
persons  sustaining  powers  held  by  them  as  sovereign 
and  by  will  and  force  above  law. 

2.  The  other  is  the  conception  of  some  action  of  per- 
sons enforcing,  as  magistrates,  a  law  given  by  some 
political  superior. 

In  other  words — it  is  always  doubtful  from  these 
defenses  whether  those  who,  at  that  time,  were  in 
office  as  constituting  the  Federal  Government  are  to  be 
regarded  as  maintaining  a  right  above  law  or  as  dis- 
charging a  duty  under  law. 

This  confusion  of  thought  is  due  entirely  to  those 
vague  conceptions  of  the  location  of  sovereignty  and 
of  the  place  which  the  written  Constitution  holds  in 
reference  to  it  which  I  have  noticed  as  intimately  con- 
nected with  the  question  we  had  proposed  as  between 
ourselves — Whether  the  original  thirteen  States  ever 
had  been  individually  sovereign. 

I  think  it  is  only  fair  to  admit  that,  in  the  mere 
matter  of   holding   distinct   ideas   on   this  point,    the 


108 

defenders  of  State-secession  can  pretend  to  superiority. 
Believing  that  no  change  in  the  possession  of  sover- 
eignty had  taken  place  in  consequence  of  the  adoption 
of  the  Constitution,  that  each  State  was  what  any  of 
the  original  thirteen  had  been — they  could  rest  on  the 
general  assertion  that  these  had  been  severally  sover- 
eign to  support  their  plea  that  the  States  have  always 
been  connected  only  in  a  league  and  been  answerable 
only  as  sovereigns  ;  each  having  the  political  right  to 
judge,  as  independent  nation,  of  their  longer  continu- 
ance in  such  league  or  alliance. 

But  as  to  the  various  defenses  of  the  opposite  posi- 
tion— we  may  place,  as  one  of  the  most  popular,  and  as 
the— 

First  defense,  that  which  is  offered  under  this  view ; 
that  is,  supposing  we  accept  as  historical  this  view  of 
the  original  condition  of  the  States,  the  Federal  Gov- 
ernment should  be  regarded  as  having  acted  in  the 
matter  of  secession  only  as  instrument  for  such  States 
as  wished  to  maintain  their  own  several  rights  as  sover- 
eigns in  an  international  relation  with  the  States  pro- 
posing to  form  themsehes  as  a  separate  confederacy. 
The  powers  which  the  government  should  exercise  in 
doing  this  could  not  be  regarded  as  sustaining  rights  of 
sovereign  in  relation  to  subject,  but  as  the  assertion  of 
claims  held  by  nation  as  against  nations  ;  as  would  be 
the  case  in  war  with  an  entirely  foreign  power. 

There  can  hardly  be  a  doubt  but  that  this  view  of 
the  position  of  the  Federal  Government  has  been  ac- 
cepted without  question  by  the  great  majority  of 
foreign  observers  ;  including  such  as  were  most  in  sym- 
pathy with  the  Northern  States. 

It  is  not  unlikely  that  a  large  proportion  of  the 
people  of  this  country  also,  and  even  of  the  people  of 
the  Northern   States,  differ  from  this  view  only  so  far 


109 

as  tliey  propose  to  recognize  the  right  of  secession  only 
when  exercised  for  reasons  whicli  they,  individually, 
might  consider  sufficient.  Many,  probably,  have 
argued  that  the  Southern  States  should  not  have  been 
alloAved  the  right  in  this  particular  instance,  or  for  the 
motives  attributed  by  them  to  the  people  of  the  eleven 
Southern  States  in  this  instance. 

In  taking  such  a  position,  one  is  obliged  to  assert 
that  the  views  of  public  morality  in  social  problems 
which  were  entertained  by  one  set  of  States,  had  the 
force  of  law  as  sustaining  the  federative  obligations  of 
another  set,  though  all  stood  in  an  international  rela- 
tion as  equally  independent. 

A  second  defense  is  found  in  another  view,  equally 
popular  during  the  war,  in  which  this  international 
relation  is  not  recognized.  In  this,  the  Federal 
Government  is  regarded  as  a  distinct  political  person 
claiming  sovereign  rights  as  belonging  to  itself.  These 
rights  it  is  supposed  to  have  acquired  when  tirst 
organized,  according  to  the  written  Constitution.  In 
this  view  the  Constitution  is  not  regarded  as  law,  in 
the  ordinary  sense,  but  rather  as  a  sort  of  muniment 
of  title  or  evidence  of  a  political  transaction,  wherein 
the  States,  as  sovereign  political  persons,  have  co- 
operated for  the  future  existence  of  an  artificial  per- 
sonality that  should  hold  certain  specified  poAvers  as  if 
in  its  own  right,  or  as  sovereign  above  law. 

Under  any  view  which  represents  the  Federal 
Government  as  holding  a  j^ortion  only  of  the  powers  of 
sovereignty,  it  must  be  conceived  that  the  States,  at 
the  same  time,  hold  the  other  portion  of  powers  equally 
sovereign  in  their  nature.  Yet,  in  taking  this  second 
view  as  expository  of  our  case,  the  Federal  Govern- 
ment— the  party  holding  one  portion  of  sovereignty — 
is  assumed  to  have  the  exclusive  right  of  allowing  and 


110 

determining  this  distribution  of  powers,  as  against  the 
States  regarded  as  the  party  holding  the  other  por- 
tions. 

This  is  equivalent  to  affirming  that  there  is  some 
political  principle,  outside  of  the  Constitution,  and 
having  the  force  of  law,  in  this  case  at  least,  in  virtue 
of  which  the  powers  held  by  the  Federal  Government 
are  so  supreme  as  to  powers  equally  recognized  l)y  the 
Constitution  as  vested  in  the  States,  that  the  latter 
may  be  suppressed  or  permanently  subordinated  by 
the  possessor  of  the  former. 

But  this  is  contradictory  to  the  assumption  that  the 
powers  held  by  the  Federal  Government  and  those 
held  by  the  States  are  equally  sovereign  powers. 

Taken  as  political  fact,  it  was  the  demonstration 
that  the  division  of  sovereign  powers  between  two 
political  personalities  is  an  impossibility. 

A  tJi  Ird  defense  is  founded  on  yet  another  view, 
which,  when  fully  presented,  is  seen  to  differ  essen- 
tially from  each  of  these  two  views.  It  is  one 
which  deserves  the  more  attention  from  its  having  an 
increasing  acceptance  with  a  large  class  of  influential 
thinkers. 

By  this  view,  neither  the  powers  held  by  the  Federal 
Government,  nor  those  held  by  the  States  severally, 
can  be  regarded  as  independent  political  powers.  For, 
in  this  view,  the  two  classes  of  powers  or,  more  gener- 
ally, all  the  powers  which  can  be  exercised  by  any 
government  whatever,  are  regarded  as  equally  held 
under  law^  or  under  something  w^hicli  is,  for  this  pur- 
I)ose,  supposed  to  be  law. 

However,  in  any  practical  application  of  this  doctrine 
to  the  circumstances  of  any  attempted  State-secession, 
there  are  the  same  inconsistencies  which  ajijiear  in  the 
application  of  each  of  the  two  preceding  views.     For, 


Ill 

here  again — of  the  two  parties  assumed  to  be  equally 
bound  by  the  supposed  Imc — one,  that  is,  the  organ  of 
Federal  Government,  is  presented  as  possessing  the 
exclusive  faculty  of  judging  of  the  extent  and  nature 
of  the  powers  granted  to  itself,  and,  correlatively,  of 
the  extent,  nature  and  possession  at  any  period  of  the 
powers  supposed  to  have  been  "reserved"  to  or  al- 
lowed by  the  same  law  to  the  other  party,  that  is,  the 
States. 

The  claim  of  the  government  to  this  political  faculty 
has  been  conspicuously  asserted,  through  its  several 
departments,  in  the  civil  war.  Its  corresponding 
action,  as  a  whole,  has  been  explained  by  its  judiciary 
department  as  constitutional ;  that  is,  legal  under  the 
Constitution  regarded  as  law. 

Under  this  aspect,  the  action  of  the  government  is 
regarded  as  the  performance  of  a  duty  under  law, 
rather  than  as  an  exercise  of  sovereign  power.  The 
judiciary  has  expressed  this  when  describing  this 
action  as  maintaining  ' '  an  indestructible  union  of 
indestructible  States." 

In  this  language  it  must  be  imj)lied  that  there  is 
some  law  binding  each  several  State  to  exist  as  such, 
whether  it  may  desire  to  exist  or  not. 

In  this  view  of  the  Constitution  as  the  supreme  law 
for  the  case  of  an  attempted  State-secession,  the  origin 
or  genesis  of  the  law,  and  even  the  existence  of  the  law- 
giver, are,  as  historical  questions,  ignored  or  held 
immaterial ;  and  this,  whether  the  original  thirteen 
States  are  supposed  to  have  been  sovereign  or  not. 
We  may  safely  assume  that  most  of  those  who  take 
this  view  as  the  foundation  for  their  position  as  sup- 
porters of  the  Federal  Government  in  the  war,  would 
be  content  with  taking  the  written  Constitution,  not 
only  as  the  all-sufficient  exposition  of  the  law,  but  as 


112 

the  proof  of  its  own  existence  as  law.  That  is,  they 
would  refer  to  the  written  Constitution  as  governing 
the  case,  without  reference  to  their  knowledge  of  any- 
particular  person  or  j)ersons  in  being,  to  whose  continuing 
will  and  force,  as  author  or  legislator,  the  law  should  be 
attributed. 

A  fourtli  defense  may  be  distinguished  as  founded 
on  the  assumption  that  law,  properly  so  called — that  is, 
all  laws  governing  the  action  of  men  in  society — must  be 
sustained  by  the  will  and  force  of  some  existing  human 
beings.  If  this  is  so  in  our  case,  then  the  supposed 
law  could  not  aj^ply,  unless  the  persons  to  whose  polit- 
ical authority  it  is  referred  have  continuously  willed  to 
support  it  as  so  applying. 

So  far  as  any  such  person  or  persons  are  recognized 
in  this  view  as  sustaining  this  law  as  against  the 
States  severally,  they  are  "the  people" — the  geo- 
graphical people — a  collection  of  human  beings,  sup- 
posed to  be  in  possession  of  all  supreme  political 
jurisdiction  from  the  moment  when  the  Constitution 
was  adopted,  if  not  earlier.  The  jjolitical  existence 
and  sovereignty  of  such  a  people  is,  in  this  view, 
always  proposed  as  a  fact  needing  no  historical 
l)roof. 

As  already  noticed  in  reference  to  the  Declaration  of 
Independence  and  the  adoption  of  the  Constitution — 
it  is  impossible  to  prove  that  there  was  a  majority  of 
such  a  people  consciously  approving  those  political 
transactions.  One  may  accept  the  actual  existence 
and  sovereignty  of  such  a  people  from  the  day  of 
the  ratification  to  the  present  moment,  or  the  sover- 
eignty of  a  majority  of  such  a  people.  But  it  is 
just  as  impossible,  as  in  those  two  instances,  to 
prove  the  assent  of  such  a  people  or  of  the  majority 
of  such  to  the  course    of    the  Federal    Government 


113 

towards  the  States  of  the  Southern  Confederacy. 
For,  by  the  definition  of  the  'people  in  this  view, 
we  must  recognize  that  not  only  the  inhabitants 
of  the  eleven  States  of  that  confederacy,  but  also  all 
who  in  the  other  States  were,  as  many  undoubtedly 
then  were,  opposed  to  that  action  of  the  government, 
were  just  as  much  people  and  just  as  much  sovereign 
as  any  who  sustained  it,  and  all  these,  taken  together, 
may  have  been  in  the  majority. 

By  sustaining  these  measures  of  the  government  as 
the  performance  of  duty  under  law  resting  on  the  will 
and  force  of  a  sovereign  people,  the  judiciary  virtually 
assumes  to  decide,  as  a  question  of  law,  who  at  any 
time  the  persons  are  who  constitute  the  people  to  whose 
authority  the  supposed  law  is  referred. 

A  similar  criticism  might  be  applied  to  the  eloquent 
language  of  President  Lincoln  at  Gettysburg,  referring 
to  those  who  gave  their  lives  "  that  government  of  the 
people,  by  the  people  and  for  the  people"  should  not 
perish  from  the  earth — if  taken  in  the  sense  usually 
attributed  to  his  words. 

K  fifth  defense  may  next  be  noticed  as  presenting  a 
contrast  with  that  last  described,  in  respect  to  the 
recognition  of  a  sovereign  law-giver. 

For,  in  connection  with  the  view  of  the  Constitution 
as  a  supreme  law  applicable  by  the  judiciary  to  deter- 
mine the  location  of  all  political  jurisdiction,  it  is  com- 
mon to  speak  as  if  a  people  of  fifty  or  sixty  millions, 
inhabiting  the  wide  continent  in  1861,  could  be  bound 
by  a  laio  resting  on  the  will  and  force  of  a  people  of 
three  millions  who  lived  within  less  than  three  hundred 
miles  of  the  Atlantic  coast  in  1789, 

A  prominent  American  lawj^er,  recently  addressing 
his  brethren  of  the  bar,  referred  to  the  ideas  of  the 
sovereignty  of  the  peoi)le  held  by  the  French  revolu- 


114 

tionists  in  1789,  as  formulated  in  their  Constitution  of 
that  year.  "  Sovereignty,"  they  said,  ''belonged  to  the 
people.  It  was  one  and  indivisible  ;  imprescriptible  and 
inalienable.  One  generation  could  not  bind  succeeding 
generations  to  its  laws."^ 

"These  conceptions  of  the  rights  of  the  people,"  said 
Mr.  Baldwin,  "found  no  place  in  the  institutions  of 
America.  On  the  contrary,  it  is  the  corner-stone  of 
modern  government  that  there  shall  be  obligations 
created  or  preserved  by  an  organic  law  which  no  popu- 
lar majority  and  no  legislative  majority  can  overcome, 
except  through  forms  and  delays  prescribed  by  that 
law  for  its  own  defense.  It  is  this  that  makes  the 
modern  republic — that  has  made  the  United  States  and 
every  State  that  is  associated  to  compose  it  {sic) — 
possible.  And  it  is  itself  possible  by  an  American 
device.  The  history  of  all  republics  before  ours  had 
been  that  either  of  weakness,  or  of  a  certain  lapse  into 
the  hands  of  tyrants.  It  was  for  us  to  show  that 
supreme  and  ultimate  power  could  be  so  entrusted  to 
a  few  men  that  they  would  have  slight  temptation  to 
abuse  it,  and  that  its  exercise  would  seldom  cause 
political  disturbance,  or  even  attract  so  much  as  the 
notice  of  the  community,  .  .  .  The  i3roblem  was  to 
make  the  legislative  power,  whether  exercised  by  pop- 
ular or  legislative  vote,  subject  to  some  superior  autlior- 
ity,  and  still  leave  it  free  to  represent  the  |)ublic  will. 
The  American  solution  is  through  the  judiciary ;  but 
it  does  not  consist  in  simply  writing  down  that  will  in 


^  Jefferson  had  taken  up  this  notion,  from  Koiisscau,  probably,  or  from 
some  misconstruction  of  Rousseau.  In  a  letter  to  Madison,  Sept.  6,  1789 
(Jeff,  writinf^s,  III,  106,  ed.  1853),  be.says  tbat  Coustilutious  and  laws,  in 
the  course  of  nature,  become  e-xtinct  with  those  who  had  given  them  their 
existence. 


115 

the  form  of  a  Constitution  and  comparing  every  statute 
with  it."i 

Here  there  would  seem  to  be  a  denial  of  the  existence 
of  any  sovereign  political  jurisdiction,  whatever,  from 
the  moment  that  the  written  Constitution  was  first 
applied  as  law.  An  actual  sovereign  law-giver  is 
supposed  to  have  lived,  legislated,  and  disappeared. 
Somewhat  like  the  myth  of  the  Spartan  Lycurgus. 
But  the  law  is  supposed  to  have  continued,  neverthe- 
less ;  binding,  by  mysterious  quality,  not  only  the  pop- 
ulation and  territory  over  which  it  was  lirst  to  operate, 
but  also  a  tenfold  increased  area  and  population. 

But,  admitting  the  possibility  of  such  a  political 
phenomenon,  reason,  supported  by  experience,  gives 
us  warning  that  the  supposed  law  will  not  be  fixed  by 
the  disappearance  of  the  law-maker,  any  more  than 
can  be  any  other  system  of  law,  written  or  unwritten, 
if  applied  by  interpretation  Wivon^x  judicial  precedent, 
in  accordance  with  English  common  law  theory. 

This  leads  up  to  the  consideration  of — 

A  sixth  defense,  which  may  be  described  as  that 
which  rests  on  a  supposed  power  of  the  judiciary  to 
settle  all  questions  of  political  right  or  power,  as  arising 
under  the  Constitution. 

Some  intimation  of  a  power  of  this  sort  is  apparently 
conveyed  by  the  last  sentence  above  quoted  from  Mr. 
Baldwin.  It  is  still  more  obviously  plain  by  the  state- 
ment which  immediately  follows  in  his  Address,  in  these 
words — 

"  The  judiciary  of  Arragon  once  had  the  power  of 
annulling  laws  which  he  deemed  contrary  to  the  fun- 

1  American  Law  Review,  Vol.  23  (1889),  p.  880.  Art.,  The  Centennry  of 
Modern  (rovernmeiit.  The  annual  address  before  the  American  Bar  Asso- 
ciation at  its  last  meeting  at  Chicago,  by  Simeon  E.  Baldwin,  of  New 
Haven,  Connecticut. 


116 

damental  principles  of  the  monarchy.  But  he  could 
exercise  it  of  his  own  motion,  as  an  abstract  political 
question  ;  and  the  power  was  found  too  great  to  be 
tolerated.  The  modern  plan  of  making  the  political 
question  dependent  on  the  issues  of  some  private  liti- 
gation, to  be  decided  like  any  other  contested  matter 
incidental  to  the  suit,  seems  illogical  and  unsystematic  ; 
but  it  does  not  offend  by  any  show  of  authority,  it  takes 
the  initiative  from  the  court  and  gives  it  to  any  private 
citizen ;  it  receives  respect  without  seeming  to  com- 
mand it." 

Of  course,  as  a  constitutional  lawyer's  statement, 
this  has  often  been  propounded,  and  without  being 
controverted.  We  have  only  to  ask — What  political 
deductions  may  be  contained  in  it  ? 

The  development  of  law  by  judicial  precedent  is 
founded  on  the  idea  that  earlier  judicial  acts  which 
have  been  carried  into  effect,  as  determining  relations 
of  persons,  must  have  been  supported  by  the  will  and 
force  of  the  ultimate  possessor  of  xjow^er  to  make  law. 
Hence,  rules  are  derived  by  jurists  from  a  collocation 
and  analysis  of  such  judicial  acts,  and  these  rules 
acquire  recognition  from  succeeding  courts  in  new 
cases  ;  their  authority  being  attributed  to  the  will  of 
the  ultimate  law-maker,  although  it  cannot  be  referred 
to  any  expression  of  that  will  as  historically  known. 

But  one  can  hardly  fail  to  see  that  political  prece- 
dent is  a  very  different  procedure.  Some  earlier  act, 
of  more  or  less  doubtful  authority,  will  be  cited  as 
sanction  for  similar  action  in  similar  cases,  until  a  suc- 
cession of  such  precedents  becomes  recognized  as  the 
exercise  of  customary  and  indisputable  authority. 

The  importance  of  such  a  series  of  events  is,  of 
course,  only  discernible  where  the  government  has  not, 
originally,  been  one  of  absolute  or  unlimited  power. 


117 

The  history  of  all  political  jurisdiction  witnesses  to 
the  fact  that  changes  in  the  possession  of  political 
power  have  been  more  frequently  brought  about  gradu- 
ally, in  the  name  of  political  precedent,  than  by  sudden 
or  violent  revolutions. 

No  device  could  be  imagined  against  sudden  changes 
in  the  possession  of  power  caused  by  revolutionary  will 
and  force.  But  to  prevent  usurx)ation  through  the 
succession  of  political  precedents,  has  been  the  one 
problem  in  the  course  of  political  freedom. 

It  had  been  supposed,  in  this  country  especially, 
that  the  solution  of  this  problem  had  been  found  in 
written  Constitutions. 

The  English  theory  of  the  development  of  positive 
municipal  law  from  judicial  precedent  had  obtained  in 
the  several  jurisprudence  of  each  colony  and  State,  as 
being  involved  in  the  acceptance  of  English  common 
law.  On  the  adoption  of  the  Constitution  establishing 
a  Federal  Government,  the  same  theory  was  from  the 
first,  and,  apparently,  without  question,  assumed  to  be 
necessarily  incidental  to  applying  the  Constitution  as 
law  in  any  questions  of  political  competency,  which 
had  once  been  properly  before  the  supreme  Federal 
Judiciary.^  To  apply  the  English  doctrine  of  judicial 
precedent,  or  of  case-la w^,  to  the  elucidation  of  any  code, 
is,  essentially,  contradictory  to  the  supposed  purpose 
of  a  code.  Of  course,  the  juristical  function  of  looking 
at  former  decisions  when  forming  an  opinion  as  to  what 
a  court  will  l)e  likely  to  decide  in  similar  cases  under 
a  code,  will  always  be  incidental  to  the  duty  of  a 
lawyer.  Even  in  countries  where  civil  codes  have  been 
adopted,  such  as  France  and  Prussia,  the  legal  profes- 

*  Compare  Dc  Nf^ailles.  Cent  Ans  de  Repiiblique,  etc.,  ch.  xviii,  Le 
pouwir judiciare.  Vol.  II,  p  144,  noticing  Hamilton  in  the  Federalist, 
and  Story's  Comm. 


118 

sion  notice  the  decided  cases  as  indicative  of  the  con- 
struction which  the  same  courts  will  give  in  later  cases 
to  be  determined  under  the  same  provisions. 

But  to  extend  this  practical  necessity  to  the  con- 
struction of  Constitutions  of  government,  the  object  of 
which  is  to  exclude  modilications  through  political 
precedent,  there  should  be  some  more  specific  warrant 
than  one  giving  power  to  decide  cases  as  they  arise,  in- 
volving the  question  of  constitutional  power. 

A  contradiction  of  this  sort  would  exist  even  in 
countries  where  the  instrument  of  government  con- 
templated by  the  Constitution  stands  alone  in  the 
exercise  of  political  functions.  But  it  is  a  still  greater 
contradiction  where  the  sum  of  political  authority  is 
not  so  exercised,  by  a  single  instrument,  but  is  shared 
by  several  such  instruments,  according  to  a  distribu- 
tion of  such  authority  supposed  to  have  been  fixed  by 
the  Constitution,  as  by  a  code. 

This  would  be  true  even  if  the  judicial  power  to 
decide  cases  under  such  a  Constitution  were  assigned 
to  some  tribunal  standing  apart,  as  to  its  construction 
or  the  choice  of  its  i^ersonnel,  from  all  such  claimants 
of  political  authority ;  just  as  any  ordinary  court 
stands  in  respect  to  private  litigants. 

But  a  still  more  violent  contradiction  to  the  spirit 
of  the  Constitution  as  a  code  is  given  when  Judicial 
precedents,  derived  from  cases  decided  by  a  tribunal 
which,  by  its  place  under  the  Constitution,  is  identified 
with  one  of  the  x)arties  litigant,  are  taken  as  jwlitical 
precedents  having  the  sanction  of  the  Constitution  for 
the  exercise  or  restraint  of  authority  as  between  such 
parties. 

The  faculty  of  the  judicial  y  department  of  the  Ved- 
eral  Governuu^nt  to  dcteM-miue  rights  and  duties  of  any 
class  has  its  only  voucher   in  the   clauses   defining  its 


119 

jurisdiction  as  extending  to  "cases,"  i.  e.,  actions  at 
law  "arising  under  the  Constitution  and  the  laws  of 
the  United  States  in  accordance  with  it." 

There  is  nothing  in  this  clause  even  suggesting,  much 
less  requiring,  the  extension  of  the  function  of  the 
judiciary  to  a  virtually  legislative  power  through  the 
doctrine  of  judicial  precedent ;  even  as  to  relations 
in  which  doubts  of  political  capacity  are  not  involved. 

It  has  never  been  claimed  that  the  federal  judiciary 
could  pronounce  an  authoritative  opinion  on  any  con- 
stitutional question,  unless  when  arising  in  a  "case" 
between  parties  plaintiff  and  defendant.  This  has  been 
commonly  noticed  as  an  all-sufficient  guarantee  against 
any  extension  of  its  influence  beyond  limits  strictly 
judicial. 

But,  aside  from  the  fact  that  a  "  case  "  can  easily  be 
arranged  for  eliciting  an  opinion,  it  is  obvious  that 
political  authority  derived  from  the  judicial  action 
of  the  tribunal  depends  on  the  extension  of  this  action 
by  the  doctrine  of  judicial  precedent. 

The  judicial  department  of  the  Federal  Government 
has  always  been  to  foreigners,  the  great  conundrum  of 
American  constitutional  law.  But  this  puzzle  would  in 
a  great  measure  disaj)iDear,  if  the  faculty  of  establish- 
ing ^oZ/^/caZ  precedent  hj  judicial  precedent  were  sep- 
arated from  the  authority  to  decide  "cases"  as  they 
arise. 

AVhether  the  history  of  the  federal  courts  has  already 
illustrated  how  great  political  changes  might  be  effected 
through  the  allowance  of  this  faculty,  is  a  question 
which  does  not  immediately  concern  us. 

The  natural  effect  of  taking  this  view  of  the  relation 
between  law  and  political  jurisdiction  is  seen  in  the 
anxiety  now  sliown,  by  one  at  least  of  our  political 
parties,  to  pack  the  Supreme  Court  for  the  intei*preta- 


120 

tion  of  the  Constitution  in  the  direction  of  centraliza- 
tion.^ 

A  seiienth  defense  may  be  distinguished  as  resting 
on  a  somewhat  different  view  of  the  source,  nature  and 
obligation  of  political  jurisdiction  in  our  country, 

Montesquieu  regarded  the  organization  of  govern- 
ments as  of  three  distinct  functions — executive,  legisla- 
tive and  judicial— illustrated  in  the  English  Constitu- 
tion of  his  time,  as  the  grand  contrivance  for  j)lacing 
political  power  under  law.  The  late  Mr,  Edmond 
Scherer  has  j^ointed  out  that  since  that  day  the  illus- 
tration has  i^roved  fallacious  ;  that  the  English  House 
of  Comlnons  now  exercises  the  sum  of  power ;  above 
executive  and  judiciary,- 

The  later  experience  under  our  Constitution  of  1789 
may  suggest  a  tendency  to  a  like  absorption  of  power 
by  Congress.  For,  in  the  long  run,  Congress  can  man- 
age the  judiciary, 

Mr.  Scherer  has  observed  that  Montesquieu's  writings 
are  among  those  which  are  negliges  par ceque  surannes, 
le  genre  d  passe  de  mode.  He  notices,  as  have  also 
Sir  Henry  Maine,  Mr.  Bryce  and  some  Americans,  that 
his  Esprit  des  Lois  was  in  high  regard  with  the  Amer- 
ican statesmen  in  the  formation  of  our  governments  ; 
and  thatDe  Tocqueville's  study  of  our  democracy  was 
inspired  by  the  same  work.  It  is  possible  that  Montes- 
quieu's political  maxims  may  have  had  a  more  lasting 
influence  here  than  in  any  other  nation. 

Montesquieu  commences  his  work  with  a  definition 
oilaio,  of  which  Mr.  Scherer  remarks,  '■''Cette  dejiiii- 
tion  a  He  trop  muitee.    A  force  de  vouloir  tout  eni- 

^ There  is  a  celebrated  reply  of  some  high  tribunal  in  France  to  the 
political  authorities — "  The  Court  renders  judgment,  and  not  service," 

*  Edmond  Schorer's  Etudes  sur  la  Literature  Contemporaine.  T.,  IX, 
Art.  VI,     Comment  il  faut  lire  MontcDqiiieu. 


121 

hrasser,  elle  laisse  echapper  ce  qiC il  iinportait  le plus 
de  retenir.  ^  Les  lois,''  llsons  nous,  ^  sont  les  rapports 
necessaires  des  chases.^  Mais  les  lots,  au  sens  juri- 
dlque  du  mot,  et  c' est  de  ces  lois-Id  que  Vouvrage  tout 
entler  va  trailer,  ne  sont  point  des  rapports,  ces  sont 
des  prescriptions  qui  reglent  des  rapports. ''' 

Mr.  J.  Q.  Adams,  in  the  ^r7r7;-{'.9 .9  already  cited,  refers 
to  Montesquieu  for  the  doctrine  that  virtue  is  the 
fundamental  principle  of  republican  government,  and 
says  :^ 

"Now  the  virtue  which  had  been  infused  into  the 
Constitution  of  the  United  States,  and  was  to  give  to  its 
vital  existence  the  stability  and  duration  to  which  it 
was  destined,  was  no  other  than  the  concretion  of  those 
abstract  principles  which  had  been  lirst  proclaimed  in  the 
Declaration  of  Independence — namely,  the  self-evident 
truths  of  the  natural  and  unalienable  rights  of  man,  of 
the  indefeasible,  constituent  and  dissolvent  {sic)  sover- 
eignty of  the  people,  always  subordinate  to  a  rule  of 
right  and  wrong,  and  always  subordinate  to  the  Su- 
preme Ruler  of  the  universe  for  the  rightful  exercise 
of  that  sovereign,  constituent  and  dissolvent  {sic) 
power." 

Through  the  whole  of  this  discourse  by  "  the  Old  Man 
Eloquent,"  as  Mr.  Adams  was  then  often  called,  there 
is  a  continued  intimation,  besides  frequent  assertion,  of 
the  binding  force  as  laic  of  the  Declaration  of  Inde- 
pendence, superior  as  laio  even  to  the  Constitution 
itself. 

Not  even  his  bitterest  opponents  ever  doubted  the 
sincerity  of  his  patriotism.  But,  in  reading  this  Ad- 
dress, the  cynical  thought  suggests  itself — that  the 
speaker,  like  others  among  his  fellow-citizens  at  a  later 

^  The  Jubilee,  etc.,  pp.  53,  54. 


122 

date,  had  been  trying  to  save  the  right  of  secession  for 
Massachusetts,  while  denying  it  to  South  Carolina. 

In  dealing  with  questions  arising  on  the  facts  of  the 
civil  war,  eminent  persons  in  all  branches  of  the 
Federal  Government  have  at  times  spoken  as  if  the 
political  Constitution  of  the  United  States  were  some 
necessary  relation  of  things — existing  independently 
of  human  will  and  force — which  relation  it  was  for 
them  to  recognize  and  carry  out  as  law.  This  has 
been  particularly  apparent  in  the  judiciary,  as  in  the 
description  of  our  political  existence  as  the  "inde- 
structible union  of  indestructible  States/'  It  is  an  idea 
that  seems  to  be  suggested  also  in  the  language  of 
Lincoln  at  Gettysburg. 

The  fashion  of  looking  at  the.  political  existence  of  a 
nation  from  the  jurists'  point  of  view  which  is  illus- 
trated in  all  these  defenses,  has  left  its  mark  on  all 
our  legal  and  historical  literature.  It  was  charac- 
teristic of  the  school  of  Story  and  Webster,  before 
State-secession,  as  political  right  asserted  by  action, 
had  called  for  some  theory  to  support  us  in  resisting  it. 
It  still  presents  itself,  for  application  to  our  later  ex- 
periences, in  later  works  of  the  same  school. 

Some  of  these  recent  efforts  to  sustain  the  courts  in 
thus  putting  the  cart  before  the  horse  appear  to  claim 
authority  in  the  name  of  the  scholarship  of  the  country 
as  represented  by  the  universities. 

Illustrations  may  be  found  in  the  Political  Science 
Quarterly,  edited  by  the  Law  Faculty  of  Columbia 
College,  New  York,  in  Const itiiiional  History  as  seen 
in  American  Law,  published  as  the  political  science 
lectures,  1889,  of  the  University  of  IMichigan,  in  the 
new  Princeton  Review,  in  the  publications  of  the  late 
Professor  Alexander  Johnston  ;  in  many  articles  in 
the  Nation,  and  in  the  treatise  by  Professor   Smith, 


123 

edited  in  the  Johns  Hoj)kins  University  Studies,  which 
has  been  cited. 

In  these,  the  political  fact,  on  which  everything  in 
this  country  that  can  be  called  law  must  rest,  is  either 
ignored,  or  assumed  to  be  known  from  statements  to  be 
accepted  as  historical  on  the  authority  of  opinions 
delivered  in  the  name  of  a  majority  of  the  Supreme 
bench,  when  the  court  announces  judgments  between 
parties  in  cases  under  the  written  Constitution  acting 
as  law. 

The  same  conception  was  prominent  in  the  addresses 
made  at  the  celebration,  at  New  York,  Feb.  4,  1890,  of 
the  Centennial  of  the  Institution  of  the  Supreme  Court. 

If,  then,  we  must  recognize,  to  its  full  extent,  the 
power  thus  claimed  for  the  judiciary  and  the  position 
which  should  be  accorded  to  the  Federal  Government 
under  this  view — we  have  one  purely  political  fact 
established  for  us  by  the  definition  which  the  Supreme 
Court  requires  us  to  receive  of  an  indestructihle  State. 

For  this  actual  indestriictiMlity  of  a  State  of  the 
Union  is  asserted  by  the  court  to  have  existed  without 
interruption  in  the  case  of  eleven  such  States,  even 
while  controlled  by  the  force  of  the  Federal  Govern- 
ment during  the  reconstruction  j)eriod.  As  definition 
of  political  status  this  must  apply  equally  to  any  other 
indestructible  State  in  the  indestructible  Union.     . 

It  had  been  supposed,  in  times  gone  by,  that  a  State 
of  this  Union  was  to  be,  whatever  it  might  be,  not  only 
by  participation  in  the  creation  of  a  federal  governing 
agency,  but  also  by  its  independent  exercise  of  the 
powers  commonly  spoken  of  as  "reserved."  Of  these, 
the  most  essential  in  the  political  relation  was  its  power, 
as  a  political  body,  to  determine  the  persons  who,  in 
such  State,  should  exercise  the  elective  franchise.^ 

^  Compare  the  note  ante  to  p.  76. 


124 

Yet,  if  these  eleven  districts,  while  exercising  those 
"reserved"  powers  under  the  supervision  of  the  Fed- 
eral Government — a  supervision  much  like  that  exer- 
cised over  the  districts  called  Territories,  if  not  more 
analogous  to  that  shown  in  any  military  occupation  of 
enemies'  territory — were  then  exhibiting  Indestructi- 
hility  as  States,  we  have  a  judicial  revelation  of  the 
true  nature  and  political  position  of  every  other  State 
in  the  "indestructible  union/' 

The  only  possible  generalization  from  these  examples 
of  indestructibility  is  that  none  of  the  present  "States" 
are  now  such  as,  in  the  general  conception,  each  of  the 
original  thirteen  had  been  when  ratifying  the  Constitu- 
tion. It  must  be  supposed  that,  at  some  time  after 
that  moment,  all  the  States  had  become  subordinate 
political  corporations,  under  law — a  law  of  which  the 
elective  central  government  was  to  be  the  sole  admin- 
istrator and  exponent — a  law  resting  on  the  will  and 
force  of  such  natural  persons  as  this  elective  govern- 
ment should  recognize  as  legally  entitled  to  the  exer- 
cise of  political  functions  under  State  laws.  ^ 

The  several  members  of  the  court  may  have  individ- 
ually attributed  this  law  to  an  origin  either  in  contract 
or  consent,  or  in  legislation ;  whether  of  the  thirteen 
States  or  of  "the  people"  of  a  century  ago.  But  the 
Supreme  Judiciary,  as  a  whole,  may  be  said  to  have 
failed  to  give  its  homage  to  any  actual  continuing 
sovereign,  whose  will  and  force  could  have  sustained 
to  the  present  moment  the  law  which  it  administers. 

No  member  of  the  Supreme  bench  has,  I  believe,  as 
yet,  sought  for  such  a  sovereign  in  a  revolutionary  act 
against  the  pre-existing  Union-state. 

But,  as  I  have  mentioned,  there  are  an  increasing 
number  of  well-known  persons  speaking  as  jurists,  his- 

*  Compare,  generally,  the  "  Reconstruction"  legislation. 


125 

torians  or  scholars,  who,  having  assumed  your  position 
as  to  the  several  sovereignty  of  each  of  the  original  thir- 
teen States,  telhis  that  they,  individually,  have  made  the 
discovery  of  this  sovereign  law-giver,  by  discovering  a 
revolution  through  a  will  and  force  superior  to  the  will 
and  force  of  the  pre-existing  Union-state. 

If  this  is  the  fact  of  the  matter,  it  is  comparatively 
of  little  importance  to  us  of  the  present  day  whether 
the  revolution  occurred  in  the  adoption  of  the  Consti- 
tution, or,  a  little  later,  when  Louisiana  was  acquired 
for  the  Union-state  as  territory,^  or  during  the  civil 
war,  or  in  reconstruction,  or  even  whether  by  the 
opinions  of  the  Supreme  Court. 

It  would  be  strange  if,  among  all  those  who  were 
prominent  in  resisting  the  secession  movement,  there 
had  been  none  to  present  some  view  which  was  more 
truly  political  than  legal. 

An  eighth  defense  may  be  discriminated  as  having 
this  character,  in  some  degree  at  least. 

In  every  country  there  is  a  class  of  citizens,  more  or 
less  clearly  distinguishable,  who,  in  addition  to  owing- 
obedience  to  law  and  its  administrators,  have  pledged 
their  honor  and  their  lives  to  sustain  those  by  whose 
will  law  and  government  are  made  operative.  The 
profession  of  the  soldier  is  to  sustain  the  will  of  the 
sovereign — by  force.  Each  man  who  voluntarily  ac- 
cepts this  position  must  be  supposed  to  have  settled 
for  himself  who  the  person  is  whose  w^ill  he  proposes 
to  assert,  even  to  death,  against  all  who  may  resist. 

It  is  seldom  the  case  that  private  persons  are  called 
on  to  discriminate  such  a  person.  Even  in  civil  war 
the  ordinary  citizen  may  sustain  a  position  of  passive 
acquiescence  in  what  may  be  enforced  as  law.    But  the 

'  Compare  Henry  Adams,  Hist,  of  the  United  States,  Vol.  II,  Chapter 
I-VI. 


126 

soldier  must  identify  himself,  or  identify  his  own  will 
and  force,  wuth  that  will  and  force  by  which  sover- 
eignty above  law  Is  possible.  Where  there  are  two 
distinct  2)ersons  who  severally  assert  the  possession  of 
this  will  and  force,  as  is  the  case  in  civil  war,  the  sol- 
dier must  make  his  choice  for  himself,  without  refer- 
ence to  any  counsel — learned  in  the  law. 

It  has  been  rare  that  any  of  the  soldier  class  at  the 
North  have  exj)ressed  any  definite  position  as  to  the 
cause  they  sustained  during  the  civil  war.  So  far  as 
they  may  have  done  this,  it  has  been  as  lawyers  rely- 
ing on  such  views  as  I  have  attempted  to  state  form- 
ally. But  in  General  Grant's  Personal  Memoirs,  Vol. 
I,  p.  218,  there  are  a  few  passages  in  which  he  gives 
his  idea  of  the  question  of  political  obligation,  in  a 
manner  which  indicates  a  sort  of  consciousness  that  it 
was  not  a  question  of  law,  or  a  case  under  the  written 
Constitution,  to  be  settled  for  him  by  law  courts  and 
legal  controversy. 

Grant  apj)ears  to  have  accepted,  as  unquestionable, 
the  common  opinion  that  the  thirteen  colonies  became 
so  many  severally  sovereign  States,  or  independent  as 
so  many  distinct  nations.  He  observes  that  if,  before 
the  adoption  of  the  Constitution,  ' '  there  had  been  a 
desire  on  the  part  of  any  single  State  to  withdraw  from 
the  compact  [/.  e.,  'the  confederation']  while  the 
number  was  limited  to  these,"  he  did  "not  suppose 
there  would  have  been  any  to  contest  the  right,  no 
matter  how  much  the  determination  might  have  been 
regretted."  But,  in  his  view — "the  problem  changed 
on  the  ratification  of  the  Constitution  by  all  the  col- 
onies, (sic)  It  changed  still  more  when  amendments 
were  added."  Further,  he  argues — Even  if,  after  the 
ratification  of  the  Constitution,  the  right  to  withdraw 
continued  to  exist,  it  certainly  ceased  on  the  formation 


127 

of  new  States,  at  least  as  far  as  the  new  States  were 
concerned.  He  says — "  It  would  have  been  ingratitude 
and  injustice  in  a  State "  organized  in  territory  ac- 
quired after  the  adoi^tion  of  the  Constitution,  "after 
the  expenditure  of  blood  and  treasure  [referring  par- 
ticularly to  Texas],  to  withdraw  from  the  Union  after 
all  that  had  been  spent  and  done  to  introduce  her." 

The  General  has  not  taken  the  position  that  when 
"the  problem  changed,"  in  consequence  of  the  adop- 
tion of  the  Constitution  and  amendments,  the  States 
were  divested,  either  altogether  or  in  part,  of  their 
sovereign  character.  The  idea  of  sovereigns  bound  by 
a  league  is  still  in  his  argument.  But  on  the  other 
hand,  apparently,  he  would  describe  the  action  of  the 
South  as  ' '  revolution ' '  on  the  part  of  the  States 
rather  than  as  "  rebeUlon'"  on  their  part,  or  on  the  part 
of  their  citizens — "Secession  was  illogical  as  well  as 
unpracticable — it  was  revolution.  Now  the  right  of 
revolution  is  an  inherent  one ;  but  this  right  depends 
on  success." 

Whatever  Grant's  fellow-soldiers  may  have  thought 
of  this  sort  of  argumentation,  it  is  plain  that  those  of 
the  South  could  use  it  as  properly  to  vindicate  their 
own  course.  If  the  question  was  of  balance  of  account 
of  "blood  and  treasure,"  especially  in  the  matter  of 
Texas,  which  was  more  particularly  connected  with 
southern  policies,  or  of  gratitude  as  between  States  and 
sections,  these  others  were  likely  to  consider  their 
position  as  good  as  that  of  their  opponents.  "  Revolu- 
tion"— if  a  right  in  any  sense — is  in  men  individually, 
against  some  sovereign.  If  the  right  of  revolution 
asserted  in  this  case  was  the  right  of  the  States,  then 
each  State  had  the  political  right  to  the  military  service 
of  its  own  citizens. 

It  may  be  inferred  that  Grant's  view  was  nearly  that 


128 

already  first  described,  that  is,  of  an  international  quar- 
rel, in  which  the  Federal  Government  represented  one 
of  the  parties,  whose  action  he  approved  of  on  motives 
of  public  policy.  The  merit  of  his  reasoning  is  that  it 
does  not  present  such  a  question  as  one  determined  by 
the  rules  of  law.  It  might,  however,  suggest  some 
comment  like  a  remark  of  Montesquieu,  very  much  in 
the  vein  of  Machiavelli — Ce  ne  fut  que  la  victoire  qui 
decida  llfallait  dire  lafoi  Punique  ou  lafoi  Romaine. 

A  ninth  defense,  however,  demands  even  more  con- 
sideration, for,  over  and  above,  whether  including  or 
excluding,  but  always  overriding  all  these  varieties  of 
opinion,  there  is  a  solution  of  our  present  question  of 
power,  which,  in  popular  sentiment,  gains  increasing 
acceptance  ;  mainly  from  a  sense  of  the  inadequacy  of 
other  explanations. 

This  view  is  one  which  dismisses  with  contempt  all 
inquiry  after  any  political  authority  resting  on  history, 
law  or  constitution,  in  any  sense  of  the  words.  This 
justification  of  the  government  as  supported  by  the 
Northem  States  is  exclusively  founded  on  the  abolition 
of  negro  slavery,  as  residting  from  the  military  meas- 
ures used  in  dealing  with  the  colored  population  of  the 
South,  and  from  Lincoln's  emancipation  proclamation, 
followed  by  the  military  occupation  of  the  territory  of 
the  confederacy,  and  their  forced  acceptance  of  recon- 
struction with  ratification  of  the  fifteenth  amendment. 

It  has  been  by  accepting  this  view  that  English 
sympathizers  with  the  North,  such  as  J.  S.  Mill,  Gold- 
win  Smith,  John  Morley  and  Sir  Henry  Maine,  have 
expressed  their  willingness  to  condone  what  they,  in 
common  with  the  majority  of  their  countrymen,  have 
candidly  declared  to  have  been,  in  their  opinion,  viola- 
tion of  the  C(mstitution,  of  hiw,  of  the  fundamental 
principles  upon  which  our  colonial  predecessors  based 


129 

their  assertion  of  independent  existence,  and  a  virtual 
repudiation  on  our  part  of  every  form  of  republican 
government,  especially  if  federal. 

Under  this  view  of  the  situation,  those  who  adminis- 
tered the  government  and  all  who  supported  it  by 
word  or  deed,  stood  entirely  outside  of  the  pale  of  law, 
Constitution  or  political  capacity.  It  was  not  as  politi- 
cal government,  or  as  supporters  of  any  government  on 
principles  of  political  obligation,  that  the  Northern 
States,  or  the  Northern  people,  or  the  Northern  sol- 
diers must  stand  before  the  world.  All,  as  so  many 
single  individuals,  will  present  themselves  as  those  who 
proposed  to  use  the  governmental  machinery  as  organ- 
ized under  the  Constitution,  as  an  instrument  to  en- 
force their  own  private  views  of  morality  in  politics. 

Under  this  view,  the  Federal  Government,  with  its 
armies  and  supporters,  occupied  no  better  position  in 
public  law  than  did  John  Brown  in  the  raid  on  Harper's 
Ferry. 

This  can  hardly  be  styled  exaggeration  in  view  of 
what  has  been  recently  published  by  an  author,  whose 
critical  history  of  our  Democracy  in  connection  \\dth 
our  Constitutions  (called  by  the  translator  Yon  Hoist's 
Constitutional  History  of  the  United  States)  has  been 
widely  praised.  Of  this  later  work  of  Von  Hoist,  a 
translation,  title — John  Brown — has  been  edited  by 
Mr.  Frank  Preston  Stearns,  with  an  Appendix.  In  this 
little  volume  the  Uerman  publicist  has  proclaimed  his 
admiration  for  Brown  as  the  typical  figure  in  the  civil 
war ;  justifying  the  course  of  the  government  as  one 
in  motive,  principle  and  historical  distinction  with  the 
action  of  Brown. 

Carlyle  had  summed  this  up  more  tersely  when  com- 
paring the  whole  affair  to  the  burning  out  of  a  foul 
chimney. 


130 

According  to  tliis  view  it  is  equally  superfluous  to 
seek  for  a  justilication  for  the  government  in  any 
written  or  unwritten  Constitution,  or  in  any  doctrines 
of  any  international  law  yet  received  among  men  of 
Euroi)ean  race. 

Many  who  sympathize  with  this  view,  as  expressing 
the  triumph  of  their  own  ideas,  would  shirk  any  moral 
responsibility  for  their  position  by  attributing  the 
result  to  the  design  of  an  overruling  Providence.  To 
sustain  this  defense,  they  must  assume  that  chattel 
slavery  had  been  allowed  by  the  same  divine  foresight 
for  uncounted  centuries  in  the  old  world,  so  that  a 
million  or  so  of  negro  bondsmen  in  the  new  Continent 
might  be  emancipated  by  Mr.  Lincoln' s  flat,  January 
1st,  1863. 

In  taking  any  such  basis  as  this  for  political  action, 
we  must  allow  that  the  binding  force  of  the  Constitu- 
tion for  each  inhabitant  of  the  United  States  depends 
uj)on  his  individual  judgment  of  its  bearing  on  ques- 
tions of  public  morals.  He  should,  however,  anticipate 
that,  for  obedience  or  disobedience  to  whatever  he  may 
choose  to  call  law,  he  must  reckon  with  such  other 
inhabitants,  though  he  can  never  know  them  before- 
hand, as  may  have  will  and  force  to  compel  his  sub- 
mission to  their  own  several  views  on  matters  and 
things. 

Of  those  among  us  who,  having  admitted  your  asser- 
tion of  the  several  sovereignty  of  the  original  thirteen, 
repudiate  your  inferences,  the  most  consistent  are  those 
who  now  take  the  ground  that  there  has,  simply,  been 
a  revolution,  at  some  time  or  other — a  revolution 
effected  by  the  people — even  if  by  a  nunority  of  the 
people.  For  in  revolution  there  is  no  laio  for  the 
beneflt  of  majorities. 

By  this  revolution,  as  they  may  hold,  the  elective  gov- 


131 

ernment,  which  was  at  first  inaugurated  in  the  name  of  a 
Constitution  voluntarily  ratilied  by  States^  has  become 
the  possessor  of  all  political  powers,  and,  though  still 
an  elective  government,  it  now  continues  as  sovereign 
by  the  votes  of  some  political  parties,  whose  first  prin- 
ciple should  be  that  any  organ  of  government  sustained 
by  the  party  holding  this  doctrine,  has  been  and  is,, 
as  no  other  could  be  or  can  be,  the  only  or  the  actual 
sovereign. 

To  my  notion,  the  position  that  such  revolution 
occurred  only  since  1861  is  a  good  deal  more  tenable, 
as  more  consistent  with  the  facts,  than  the  position 
of  those  who,  to  avoid  the  charge  of  being  revolution- 
ists in  their  own  day  and  place,  have  tried  to  represent 
the  thing  desired  as  having  been  done  for  us  all  a  cen- 
tury ago  ;  when,  according  to  their  version  of  our  his- 
tory, the  States  were  compelled,  by  the  people,  or  by  a 
people,  or  by  some  people,  to  abdicate  in  favor  of  the 
instrument  of  government  created  by  their  own  ratifi- 
cation— so-called — of  the  Constitution  of  1789. 


XI. 

But  I  have  devoted  enough  space  to  the  statement  of 
such  pleas  in  justification  of  the  government,  for  which 
I  have,  so  to  speak,  no  retainer. 

I  ask  your  patience  to  let  me  in  a  few  sentences  offer 
you  my  application  of  my  theory  of  our  national  exist- 
ence— our  existence  under  the  sovereignty  of  the  Union- 
state — to  the  circumstances  of  the  war  of  secession. 
Though  I  think  you  may  have  already  anticipated 
what  this  would  be. 

When  South  Carolina,  in  w^hat  she  called  her  Declara- 
tion of  Independence,  in  November,  1861,  said — "The 
State  of  South  Carolina,  having  determined  to  resume 
her  separate  and  equal  place  among  nations,"  etc.^  she 
assumed  the  pre-existence  of  something  that  had  never 
existed. 

From  the  first  moment  of  her  political  separation 
from  the  British  empire.  South  Carolina  had  exercised 
political  jurisdiction,  autonomously,  within  her  own 
borders,  and  with  twelve  other  States  in  national  govern- 
ment, only  in  virtue  of  will  and  force  manifested  by 
the  Union-state,  of  which  she  was  a  voluntary  member, 
and,  as  such,  had  shared  the  possession  of  sovereignty. 

Her  existence  as  a  holder  of  political  power  had 
always  depended  on  her  voluntary  continuation  as  a 
member  of  this  Union-state. 

J  udge  Petigru  is  reported  to  have  said  at  the  time  of 


133 

this  declaration  of  his  State,  that  South  Carolina  was 
too  small  for  a  nation  and  too  large  for  a  madhouse. 
His  fellow-citizens  of  his  own  day  differed  from  their 
predecessors  of  1776  and  1789 ;  because  these  had 
known  this  and  accepted  the  situation,  and  were  glad 
to  do  it. 

It  has  been  continually  said  at  the  North  since 
that  time,  that  the  war  was  like  a  case  at  law,  and  the 
result,  like  the  judgment  of  a  court,  settled  the  politi- 
cal nature  of  the  Union.  This,  to  my  mind,  is  non- 
sense. 

There  was  one  question,  and  one  only,  to  be  settled, 
and  that  was  one  of  fact — not  of  laio.  It  was  this — 
Whether  the  States  voluntarily  remaining  together, 
composing  as  such  the  continuing  Union-state,  would 
exhibit  the  will  and  force  to  sustain  the  former  domin- 
ion over  all  the  territory  and  population  which  had 
before  been  included  within  the  dominion  of  such 
Union-state. 

This  explanation  of  the  situation  in  1861  is  the  same 
as  that  which  has  been  alread}^  given  for  the  supposed 
case  of  a  secession  attempted  by  one  of  the  States  and 
former  colonies  during  the  revolutionary  period,  or 
during  the  existence  of  the  Continental  Congress,  as  a 
common  instrument  for  their  independence  in  union, 
or  during  the  existence  of  the  government  under  the 
Articles  of  Confederation. 

Sovereignty — having  always  been  held  by  such  States, 
being  in  union,  as  had  the  will  and  force  so  to  hold  it 
within  the  geographical  domain  known  as  the  United 
States — remained  with  such  States  as  should  continue 
to  manifest,  in  union,  the  will  and  force  to  hold  such 
sovereignty.  In  the  act  of  striving  for  separate  sover- 
eignty, a  State  abandons  the  sovereignty  which  it  held 
as  constituent  of  the  Union-state.     It  exists  thereupon 


134 

only  as  territory  and  population  under  the  dominion  of 
the  still  existing  Union-state. 

Some  English  critics,  intending  to  be  very  severe, 
once  said  that  the  struggle  on  the  part  of  the  North 
was  for  dominion  and  on  the  part  of  the  South  was  for 
independence. 

This  was  true  enough,  politically  speaking,  on  the 
basis  of  a  pre-existing  Union-state,  as  I  have  presented 
it.  The  dominion  to  be  sustained  was  a  pre-existing 
and  continuing  dominion  ;  but  always  depending  on  the 
will  and  force  of  some  States  voluntarily  in  union  and 
willing  and  able  to  exert  the  force  required. 

If  the  eleven  States  of  the  Confederacy  had  succeeded 
in  the  war,  it  would  by  this  theory  have  been  revolu- 
tion as  against  a  former  power-holder.  But  it  might 
have  been  said  that,  in  that  case,  the  right  asserted  by 
the  States  remaining  in  union  would  have  been  proved 
not  to  have  existed  ;  since  it  was  never  under  Icim  or  by 
law^  but  depended  on/brr^for  its  existence,  then,  as  it 
does  now,  and  will  at  any  time  to  come.  As  it  was — 
some  States  voluntarily  united  were  able  ancf  iDillii\ff 
to  resist  the  secession  attempt,  and  maintained  the 
dominion  which  had  before  belonged  to  all  the  States 
including  the  eleven,  while  voluntarily  united,  and, 
therefore,  they  had  the  rigJif  to  do  so. 

The  independence  sought  for  by  the  other  States 
would,  if  attained,  have  rested  on  similar  will  and 
force  ;  but  revolutionary  and  new  ;  not  pre-existing. 

In  the  matter  of  political  jurisdiction  right  is  not 
right,  if  separated  from  might,  as  every  Plnglishman 
Avho  knows  the  political  history  of  his  country  must 
believe. 

AVhile  your  friends  are  maundering  about  tlie  disa])- 
pearance  of  a  political  ])lien()men(m  which  never  had 
any  substance  but  in  poi)ular  imagination,  the  partisans 


135 

whose  avowed  desire  is  the  extinction,  not  merely  of  the 
traditional  federal  Union,  but  of  the  actual  Union- 
state,  and  the  consequent  reduction  of  every  function 
of  government  to  the  will  of  one  majority — a  party 
majority,  posturing  as  the  majority  of  a  nation — are 
daily  strengthening  themselves.  And  this  is  mainly 
for  the  want  of  all  popular  conception  of  the  possi- 
bility of  anything  different ;  except  your  doctrine  of 
State-sovereignty — with  the  right  of  secession. 

They  and  you,  opposed  as  you  seem  to  be,  are  un- 
consciously working  for  the  same  political  future. 
Whether  that  is  to  be  good  or  bad,  better  or  worse 
than  anything  of  the  past,  is  not  the  question  between 
ourselves,  at  present.  Le  peuple  rot  can  be  despot,  as 
well  as  another. 

Permit  me,  at  the  close  of  this  letter,  to  offer  you  the 
remark  of  an  acute  Frenchman  writing  on  similar  his- 
torical questions.  You  are  free  to  make  the  applica- 
tion to  yourself  and  those  who  agree  with  you,  or  to 
those  whom  you  and  they  regard  as  opponents. 

"Belief,"  says  Mr.  Taine,  "occurs  only  when  there 
is  a  disposition  to  believe,  and  in  the  success  of  books, 
its  share  is  often  greater  than  that  of  their  authors. 
On  addressing  men  about  politics  or  religion,  their 
opinions  are,  in  general,  already  formed ;  their  preju- 
dices, their  interests,  their  situation  have  confirmed 
them  beforehand ;  they  listen  to  you  only  after  you 
have  uttered  aloud  what  they  inwardly  think." 

Taine' s  Ancient  Regime,  277. 


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